Thursday, December 24, 2009

2010 H-1B Cap Reached

On December 22, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. The USCIS press release indicated that Dec. 21, 2009 represents the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected

Friday, December 18, 2009

Up in the Air : 2010 H-1B Numbers almost Used Up

On Tuesday, December 15th, U.S. Citizenship and Immigration Services (USCIS) announced its receipt of 64,200 filings against the 2010 H-1B cap. While USCIS continues to accept petitions, the cap may be reached before the end of the calendar year.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for October 2010 employment is April 1st, 2010. While an economic recovery may increase the number of petitions charged against the 2011 cap in April 2010, It is unknown whether we will soon see a return to the 2008 record levels of receipts which resulted in a random selection process.

Monday, November 23, 2009

DHS Announces New Wave of Critical Infrastructure I-9 Audits

by Tina Brockmann

On November 19, 2009 the Department of Homeland Security announced that it had issued 1,000 I-9 audit notices to employers in critical infrastructure industries.

Back in July, 2009, DHS sent out 654 I-9 audit notices to employers across the US. During I-9 audits ICE agents review the I-9 forms that employers are required to verify and maintain for every newly-hired U.S. employee.

DHS Assistant Secretary John Morton announced that the newest wave of audit notices were directed at employers were selected based on their industry of public safety and national security. Following the INS/DHS reorganization in 2002, there was a series of investigations into employer hiring practices at critical infrastructure sites including Operation Tarmac (airports) and Operation Glow Worm (nuclear power plants). ICE has also turned its enforcement attention to utility companies, chemical plants, military bases, and defense subcontractors.

This latest wave of audit notices is significant since Morton also announced that 45 employers had been debarred from government contracts in 2009. Government contractors and subcontractors and other employers in critical infrastructure industries are advised to consider external, private I-9 audits to assess their potential liability and possible remediation.

Tuesday, November 3, 2009

From AILA Infonet: "Obama Signs FY10 DHS Spending Bill; Four Immigration-Related Programs Extended through 2012

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)

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;

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.

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.

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


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.

Thursday, August 6, 2009


My co-authors, Marcine Seid and Chris Stowe, and I are pleased to announce that our Aspen book is shipping this week. We tried to walk the fine line between making the book comprehensive and understandable. We hope that the readers will find IMMIGRATION LAW IN THE WORKPLACE innovative, as it covers both immigration employment benefits and compliance in one volume.
With Immigration and Customs Enforcement (ICE) recently announcing nationwide I-9 audits, employers need to understand the rules governing Form I-9 compliance and keep up to date with the latest changes affecting immigration law. We hope that you find our book to be an authoritative resource that provides a direct understanding of current worksite enforcement and compliance issues.
IMMIGRATION LAW IN THE WORKPLACE helps employers handle both current – and coming – requirements and includes:
• The latest forms, agency guidance and our analysis;
• Clear alternatives that fit a company’s goals and challenges;
• Appendices that give real-world examples of how the immigration employment benefits and compliance laws can work to save a company time and money.
• Guidance for visa applications and enforcement compliance in one volume.
• Explanations of the nonimmigrant and immigrant visa categories
for foreign employees and the CIS requirements for fast approvals.
The book also provides the following employer guidance:
• I-9 audits, and how to prepare for them;
• Government Contractors’ E-Verify responsibilities;
• Visa application requirements;
• Permanent labor certifications and alternatives;
• How to immigrate your foreign employees;
• ICE enforcement and sanctions policies and the best practices to ensure compliance;
• U.S. immigration strategy for multinational employers;
• E-Verify and IMAGE requirements,;
• Tax and Social Security issues for foreign employees,
and much more.

Wednesday, July 22, 2009

CCH White Paper: DHS’s refocused worksite enforcement strategy targets employers

This new CCH White Paper provides employers with compliance advice concerning the latest DHS immigration employment enforcement efforts. It features tips regarding the use of the revised I-9 form by attorney Charles M. Miller. Miller is one of three authors of a forthcoming Aspen Publishers title scheduled for release in August 2009. Immigration Law in the Workplace, a comprehensive, authoritative yet easy-to-read topical approach to current worksite enforcement and compliance issues.

We provide the CCH White Paper in our Publications section in Adobe .pdf format.

Wednesday, July 8, 2009

Napolitano: No-Match Rule to be Rescinded

By Charles M. Miller

Homeland Security Secretary Jane Napolitano announced on July 8, 2009, that it was the agency’s intention to withdraw the Social Security No-Match Regulation, which has never been implemented and has been blocked by court order, in favor of the E-Verify system. .

The AFL-CIO, ACLU, National Immigration Law Center, US Chamber of Commerce, and other plaintiffs, were successful in obtaining a preliminary injunction in October 2007 stopping DHS from implementing this regulation. (AFL-CIO v Chertoff, ND Cal, No 3:07-cv-04472-CRB). In November 2008, DHS had filed a motion asking Judge Charles Breyer of the Northern District of California to lift the preliminary injunction on the federal agency's much beleaguered no-match regulation after publication of the agency’s No -Match supplemental final rule had been published in the Federal Register. Found online at

District Court Judge Breyer delayed the hearing on the merits of the litigation until the Obama administration had the opportunity to develop its own position, as reflected in the Napolitano press release. Judge Breyer had indicated that SSA had been prepared to send 140,000 letters concerning 8 million employees for Tax Year (TY) 2007. However, SSA No-Match letters for recent tax years have been in a holding pattern because of the litigation, with no current announcement as to the plans for their resumption.

Employers are reminded that the no-match letters represent only one form of constructive knowledge; ICE Worksite Enforcement cases maybe based on other forms of constructive knowledge. As a practical matter, an employer may obtain constructive knowledge that unauthorized aliens may be employed by a variety of other circumstances, including: (1) where the employer fails to complete or improperly completes the Form 1-9; (2) from information obtained from a labor certification application or visa petition; (3) rejection of an alien worker as an applicant due to employment authorization and/or identity document deficiencies, who later appears as an employee of an independent contractor; (4) local law enforcement advice after criminal and civil processes involving off-worksite activities of such a worker, and (5) adverse publicity following a contractor's worksite enforcement problems at another company.

Thursday, July 2, 2009

Alert: Immigration Audit Policy Change

by Charles M. Miller

On July 1, 2009, U.S. Immigration and Customs Enforcement (ICE) announced a policy change issuing Notices of Inspection (NOI) to 652 employers nationwide to initiate administrative I-9 audits. This policy announcement marks a shift in enforcement emphasis from the Bush administration’s policy of emphasizing criminal investigations of employers suspected of violating the federal immigration employment laws by the use of criminal search warrants based on probable cause, which do not require advance notice.

John Morton, the Department of Homeland Security Assistant Secretary for ICE, announced that the 652 businesses were selected for audit as a result of leads and information obtained through other investigative means.

Employers have had the responsibility of verifying the employment authorization and identity documents of all persons hired since the enactment of the Immigration and Reform and Control Act (IRCA).This legislation makes it unlawful for U.S. employers to hire undocumented workers. Under the Act’s provisions, employers are required to verify the identity and work eligibility of all employees, including U.S. citizens, on Form I-9. Employers have the obligation to refuse to employ a person whose authorization and/or identity documents are unacceptable.

IRCA mandates that an ICE administrative Form I-9 audit be preceded by the written Notice of Inspection (NOI), providing for the IRCA-mandated 72-hour notice. The NOI will indicate the date, time and place that the ICE agent will arrive, and the documentation that the employer is requested to produce.

It is wise for an employer to comply with an ICE NOI. If the employer does not comply with the request to present the Form I-9, ICE may compel production by issuing a subpoena. A refusal or delay in the production of the Form I-9 will be considered a violation of the retention requirements by the government. ICE may also assert general powers to obtain personnel records that pertain to the hiring and employment of an individual employee. In the absence of the employer’s willingness to produce the personnel records, ICE may issue an administrative subpoena to obtain these materials. Some employers have refused to comply with the administrative subpoena necessitating the agency to enforce the subpoena in federal court. Nevertheless, employers may need to rely on the negotiating skills of their attorneys to reasonably limit the scope of the ICE audit.

The employer’s compliance program should include a response plan for government contacts, including information for support staff such as receptionists and human resources staff members since these will likely be the first persons that the agents talk to. There should be a line of managerial response, so that support staff is aware of which company personnel should be called, and in what order. A company should be sure that legal counsel, whether in-house or external, is immediately notified as to the nature and details of the government contact at issue, as well.
Since ICE may ask consent to do a “survey” of the employees present at the employer’s work place, it is advisable to have counsel present when agency investigators are on the company’s premises. Note that, in the absence of consent by the employer to a survey, ICE may not make a warrantless search of the company’s premises.

ICE audits focus on whether employers have violated the prohibitions against knowingly employing unauthorized aliens and Form I-9 paperwork violations. While there is a good faith defense allowing employers ten days after agency notice to effect good faith I-9 paperwork corrections, DHS has not implemented the defense by either regulation or policy, and will need to be a subject of negotiation with ICE auditors. It is also important to note that there is also a statutory affirmative defense to the “knowingly hiring” charge when the employer is able to prove good faith compliance with the I-9 verification requirements.

After the audit a Notice of Intent to Fine (NIF) may result. When a NIF is issued, employers may request a hearing within 30 days of its service before an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO), under the authority of the Executive Office for Immigration Review, within the Justice Department. Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within the 30- day period, the ICE will issue a final order to cease and desist and to pay a civil money penalty. If a hearing is requested, ICE will file a complaint with OCAHO to begin the administrative hearing process which may end in settlement, dismissal, or a Final Order for civil money penalties. Employers who have faced administrative charges in the past have subsequently found their companies the focus of criminal investigations, years after the imposition of administrative civil sanctions.

While a company’s actual compliance procedures will vary depending on its size and specific industry hiring practices, these compliance suggestions are offered to employers:

1. Follow a specific hiring policy that incorporates not only the verification and record keeping provisions, but also the antidiscrimination provisions.

2. Do not request specific identity or employment authorization documents from a new employee.

3. If Forms I-9 have omissions; take immediate steps to complete the Forms I-9 now with accurate and conspicuous, albeit tardy, dates of completion.

4. Provide on-going training and resource materials for company personnel involved in the verification and record-keeping process.

5. Keep a tickler system for the reverification of employees with employment authorizations that expire.

6. Verify the documents of employees hired for three days or less should be verified prior to their first day of work to insure compliance.

7. Human resources personnel should contact legal counsel prior to an immigration-related hiring or firing.

8. Do not begin the verification process until a prospect has accepted the offer of employment.

9. Conduct regular internal Form I-9 audits at your hiring offices.

10. Use legal counsel to draft prohibitions, auditing compliance safeguards and indemnification provisions against the use of unauthorized labor when negotiating or renewing contracts involving independent contractors or subcontractors. Ensure that they comply with all federal and state labor, wage and hour laws.

11. Train your employees and managers for permissible use of independent and subcontractors. Teach them to report the suspected use of unauthorized labor by the company’s contractors.

12. Conduct contractor due diligence. Check the contractor’s company history and public records to obtain an accurate assessment of the company’s legal compliance track record.

13. Promulgate a policy prohibiting the use of any labor contractors who employ undocumented workers, subject to disciplinary action up to and including discharge.

Sunday, June 28, 2009

Continue to Use I-9 Beyond June 30, 2009

The CIS has advised employers to continue to use the 2009 Edition (Rev. 02/02/2009) for I-9 verifications beyond its current expiration date of June 30, 2009.

Monday, June 1, 2009

E-Verify for Federal Contractors Delayed Until September 8, 2009

The litigants in Chamber of Commerce v. Napolitano, have announced that for the fourth time they have agreed to postpone implementation of the FAR E-Verify final rule until September 8, 2009. The 70 day stay of the district court’s order was requested to allow the Obama administration to review the FAR E-Verify rule.

The delayed final rule would require 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. Under the new applicability date, any solicitations that occur prior to September 8, 2009, would not contain the contract clauses that the rule would impose.

Wednesday, May 6, 2009

Charles M. Miller: Another Trumpet

Sometimes it is the most unlikely of persons that affect history. Such a person was Clarence Earl Gideon, another such person is Ignacio Flores-Figueroa.

By all accounts, Clarence Earl Gideon was a drifter with a long history of petty criminal convictions. Gideon was convicted of the 1961 burglary of the Bay Harbor Pool Room in Panama City, Florida, based on a tip that he was seen leaving the pool room in the early morning with bulging pockets and a pint of wine. When he was tried for the crime, Gideon asked for, and was refused appointed counsel. After representing himself, Gideon was convicted and sentenced to a five year prison sentence. From his Florida prison cell he applied for a writ of certiorari to the United States Supreme Court raising the Sixth Amendment’s right to counsel. That right to appointed counsel was confirmed by Justice Hugo Black writing for the majority in Gideon v. Wainwright. Gideon was later retried and acquitted. Gideon v. Wainwright is credited with expanding the need for the public defender system and widening the right to appointed counsel. In a subsequent case, Miranda v. Arizona, the Warren Court found the right to appointed counsel extended to a criminal police interrogation.
Generations of law students, many of them future public defenders, were inspired by GIDEON'S TRUMPET, a 1964 book by New York Times’ legal reporter Anthony Lewis, describing the story behind Gideon v. Wainwright.

In 1963, U.S. Attorney General Robert Kennedy remarked about the Gideon case: "If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed."

The second unlikely subject of a historical U.S. Supreme Court case, Ignacio Flores-Figueroa is a Mexican citizen who had worked illegally for an Illinois steel plant. In 2000, Flores provided the steel plant with a false name and false Social Security number. In 2006, he told his employer that he wanted to be known by his real name and presented counterfeit Social Security and alien registration cards that showed his real name, but the numbers on both cards were assigned to other persons.

Flores’ employer reported the name change request to the U. S. Immigration and Customs Enforcement. ICE discovered that the numbers on Flores’ new documents belonged to other people and charged him with aggravated identity theft. He was convicted and sentenced to the additional two years mandated by the law.

Flores’ case arrived at the Supreme Court the same way Gideon’s did, upon a grant of a writ of Certiorari. Justice Breyer’s decision for the 9-0 Supreme Court emphasized that the plain English of the aggravated identity theft statute required specific intent to knowingly use the identity of another person. In Flores’ case the Government could not prove that he knew that the documents’ numbers were assigned to other people.

The ultimate historical effect of the Supreme Court’s decision in Flores-Figueroa v. United States will be written later. It is clear that the estimated 8-12 millions of persons that are working in the shadows of the United States’ economy may never need to face aggravated identity theft charges because the undivided Roberts Supreme Court found the need for specific intent for such a conviction.

Millions of persons live in the U.S. without current legal status. Historians may find that the root causes of our country’s immigration problems are found in the legal immigration system. Its disrepair and disequilibrium may well be a major cause of our immigration failures.

The Obama administration has signaled that it will ask Congress to look to comprehensive immigration reform as a means to legally introduce millions of workers into the tax and entitlement systems. If the failed 2007 immigration reform efforts are any indication, there will be broad issues of disagreement as to the legalization of existing workers, border security and worksite verification responsibilities.

Nevertheless, a unanimous Supreme Court found that the Government failed to prove that Ignacio Flores-Figueroa knew that the Social Security and Alien Registration numbers he used belonged to other people. Millions of persons, like Flores-Figueroa, should not be considered aggravated identity theft felons for the reasons found by Justice Breyer. The Government may try to deport Ignacio Flores-Figueroa after he is released from federal prison in Georgia. But like Clarence Earl Gideon, his Supreme Court case will surely affect how millions of other persons are treated by the legal system. In that respect, both men changed legal history.

Friday, April 10, 2009

Accept Expired Permanent Resident Cards as Work Authorization

I-9 compliance staff is reminded that the I-551 Permanent Resident Cards have an expiration date, but even though the card may be expired it is still considered "unexpired" for the purposes of I-9 verification, by CIS regulation.

Saturday, March 28, 2009


Studio City immigration attorney Charles M. Miller, of the Miller Law Offices provides these timely tips for the use of the 2009 edition of the Form I-9 on April 3, 2009.

Please remind your I-9 compliance staff that on April 3, 2009 the I-9 2009 edition must be used for new employees and the reverification of employees with expiring employment authorization documents.

Just in time for that deadline, the CIS has released the Handbook for Employers, April 3, 2009 edition, containing the unexpired document guidance and the revised Lists A, B and C. The revised Lists A, B and C reduce the number of permissible documents and prohibit the employer from accepting expired documents. The Handbook is a large file and is available for downloading from our Website’s Publications Page in Adobe format: M-274 2009.pdf

Here are some tips for using the new I-9 Form and the unexpired document rule.

1. DO remember to use the new Lists A and C for the reverification of the employment authorization documents of existing employees whose document(s) expire.

2. DO NOT reverify an expired U.S.passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

3. DO remember that the receipt rule is only for the receipt for the replacement of lost, stolen or destroyed authorization documents, not for renewals that have been filed but have not been issued.

4. DO reverify on section 3 of Form I-9; if you run out of room you may write the employee’s name in section 1 and complete section2 of a currently valid Form I-9. You can also use a new Form I-9 section 3. Remember to attach the new Form to the previously filled out I-9.


6. DO be aware that there are new tables of temporary employment authorization documents found on pages 8-9 of the M-274 Handbook for Employers (April 3, 2009 edition)that may be accepted IN ADDITION to the documents found on Lists A, B and C.

7. DO remember to complete section 1 of the Form I-9 on the first day of employment; For other than short term employees (3 days or less) the employee has 72 hours to produce the Lists A, or B and C documents, unless the employee produces a receipt for a replacement document.

8. DO NOT request specific documents; to do otherwise may violate the document abuse discrimination law.

9. ONLY E-Verify employers must require a social security number and a List B photo ID.

10. Do remember that all employees, except for short term employees, may take advantage of the receipt rule.

Tuesday, March 24, 2009

New Handbook for Employers Released

CIS has released the Handbook for Employers April 3, 2009 edition, containing the unexpired document guidance and the revised Lists A, B and C. The revised List A, B and C provisions reduce the number of permissible documents and prohibit the employer from accepting expired documents. The rule also provides minor changes to the Form I-9 to implement these changes. These changed lists and the unexpired document rule are delayed in their implementation until April 3, 2009. The Handbook is available for downloading from our Publications Page in Adobe format: M-274 2009.pdf

DHS had published a notice that the CIS is delaying the implementation of the I-9 Interim rule for 60 days or until April 3, 2009. 74 Fed. Reg. 5621(Jan. 30, 2009). The Interim rule had been scheduled to have become effective on February 2, 2009.

Employers are reminded to use the I-9 2007 edition
until the April 3, 2009 effective date. On that date the I-9 2009 edition must be used. We advise employers not to use the CIS 2007 Website version at this time, as it erroneously links to the 2009 form which should not be used until April 3rd.

Sunday, March 15, 2009

Administration Delays I-9 Rule

Use the 2007 I-9 Edition Until April 3, 2009

DHS has published a notice that the CIS is delaying the implementation of the I-9 Interim rule for 60 days or until April 3, 2009. 74 Fed. Reg. 5621(Jan. 30, 2009). DHS is also extending the comment period until March 4, 2009. The Interim rule had been scheduled to have become effective on February 2, 2009.

Employers are reminded to use the I-9 2007 edition
until the April 3, 2009 effective date. On that date the I-9 2009 edition must be used. We advise employers not to use the CIS 2007 Website version at this time, as it erroneously links to the 2009 form which should not be used until April 3rd.

The Interim rule's List A, B and C provisions reduce the number of permissible documents and prohibit the employer from accepting expired documents. The rule also provides minor changes to the Form I-9 to implement these changes. These changed lists and the unexpired document rule are similarly delayed in their implementation until April 3rd.

The delay in the effective date of the Interim rule is due to the White House memorandum which asked for the time to allow the Obama administration to consider the rule’s provisions. The American Immigration Lawyers Association had called on the administration to delay and reconsider the rule's effect on employers, based on its omissions and inconsistencies with other statutes and regulations.

E-Verify for Federal Contractors Delayed Until May 21, 2009

The U.S. Chamber of Commerce has announced that the Acquisition Councils have agreed to postpone implementation of the FAR E-Verify final rule until May 21, 2009.

The January 20, 2009 memorandum from White House Chief of Staff Rahm Emanuel, ordering a 60 day moratorium on pending regulations awaiting effective dates, is cited as the authority for the delay to allow the Obama administration to review the FAR E-Verify final rule’s legal basis.

The delayed final rule would require 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.

Under the new applicability date, which is scheduled to be published in Friday’s Federal Register, any solicitations that occur prior to May 21, 2009, would not contain the contract clauses that the rule would impose.

April 1, 2009- First Authorized Receipt Date for H-1B Petitions

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelors degree for professional jobs each year. The first date that H-1B petitions are accepted by the USCIS for employer filing for 2009 employment is April 1st.

Advanced planning is necessary because the competition for the 58,200 H-1B numbers is keen. In 2008, a USCIS random selection (lottery) for successful petitions was necessary. There was a similar lottery needed for the additional 20,000 H-1B numbers for beneficiaries with U.S. advanced degrees.