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.

Two-Part Series Seminar: Employment Verification Issues for Employers:

 
 

 
Two-Part Series SeminarForm I-9 and E-Verify Training
Employment Verification Issues for Employers:

Presented by
Hector A. Chichoni, Esq., EpsteinBeckerGreen
  
 

Since its inception more than two decades ago, employers have failed to fully comply with the Immigration Reform and Control Act (IRCA) of 1986. As a result, Form I-9 compliance levels among employers are of great concern. With the government cracking down on compliance, employers need to take immediate steps to get their I-9 “houses” in order.

Moreover, on September 14, 2009, Alejandro Mayorkas, head of U.S. Department of Homeland Security, Citizenship and Immigration Services, told reporters that the agency is “taking steps to prepare for the possibility that E-Verify may become mandatory for all employers” adding that “it is our responsibility to be ready should E-Verify ever be required of all employers.”

 

We are conducting a two-part interactive Form I-9 and E-Verify training program to offer hands-on training to ensure the attendees are confident, knowledgeable and capable of managing I-9 and E-Verify compliance.
 
 
WHERE
The Miami City Club
 
200 South Biscayne Boulevard
55th Floor
Miami, Florida 33131
 
 
Part  I
Form I-9 Training
 
Form I-9 training is the first part of the two-part series which includes copyrighted training materials with practical examples along with useful documentation and resource materials. The components of part one, Form I-9 Training, includes:
  • In-depth look at I-9 Completion, Documentation and Receipt Rules.
  • Forensic training for questionable documents.
  • Review internal process for re-verification and notification tracking.
  • Establish an I-9 correction process.
  • Provide self-evaluation and team-based testing.
  • Help you learn how to process the I-9 form correctly;
  • Raise your comfort level in working with the documents and policies involved;
  • Enable your company to ensure the employees are authorized to work and are compliant with I-9 standards;
  • Serve as a quick and easy job aid and reference whenever needed.
  •  
E-Verify training, the second part of the two-part series, will help you get the information you need to properly weigh the pros and cons of the E-Verify system, you will learn what every employer should know about the electronic employment verification system:
  • How federal contractors are troubleshooting E-Verify issues
  • What chances have been made, what problems have been solved, and what problems remain.
  • How the government is increasing its worksite enforcement activity
  • Best practices for avoiding worksite enforcement actions
  • How to find out if your organization is being targeted from an audit, and what agents look for in an audit
  • Your legal recourse if ICE agents arrive on site
  • The potential civil and criminal consequences for employers from an audit
  • Recent government actions to fine employers for immigration violations
  • Your legal recourse if fines are levied against your organization
  • What happens to workers who can't prove they're authorized to work in the U.S.
  • How the government's new audit strategy impacts the current debate on making E-Verify mandatory for all employers              
Part II
 E-Verify Training
Date and Time: Thursday, October 21, 2010, 8:30 am - 10:30 am
Date and Time: Thursday, September 30, 2010, 8:30 am - 10:30 am
 

REGISTRATION FEE
The fee for this event is $25 for each session, or you can purchase both sessions in advance for $35.  This fee includes breakfast, parking and training materials. 
 


 
To register, please .click here

If you have any questions about this briefing, please contact 

Anneliese Garcia, (305) 579-3200, or agarcia@ebglaw.com
 
About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.
 

 

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ICE Expands Worksite Enforcement Activities in the Southeast

On Tuesday, March 2, 2010, the U.S. Department of Homeland Security (“DHS”) announced that it was expanding its worksite enforcement strategy in the Southeastern United States. As part of this strategy, the U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS directly responsible for worksite enforcement, indicated that it is issuing Notices of Inspections (“NOIs”) to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi.

These NOIs alert the businesses that ICE will be inspecting their Form I-9s and seeking to review voluminous other business records, including a list of current and terminated employees with hire and termination dates; the names, social security numbers and dates of birth of all active employees; quarterly wage and hour reports and/or payroll data on all employees covering the period of inspection; quarterly tax statements; all correspondence with the Social Security Administration (including “No-Match” letters); and more! All of this is an effort by ICE to determine whether the businesses are complying with federal employment eligibility verification laws and regulations. This DHS announcement is the latest in a series of expanding worksite enforcement efforts by the Obama administration. Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers.

Hector Chichoni, the Chair of EBG’s Southeastern Immigration Practice, notes: “this action by ICE underscores what the Immigration Law Group at EBG has been advising clients since the Obama administration took office. Businesses need comprehensive employment verification and related compliance plans in place because the civil and potentially criminal consequences of this enforcement strategy can be severe. Businesses that ignore this important aspect of their operations can face substantial fines that make compliance now not only good corporate citizenship, but also good risk management.”

These ICE inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area. This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis management procedures, including access to outside counsel that specializes in this area, in the event that the “ICEman” cometh!

 

USCIS Launches Informational Video on the Systematic Alien Verification for Entitlements (SAVE) Program

U.S. Citizenship and Immigration Services (USCIS) today posted an

informational video on its Web site that provides an overview of the agency’s Systematic Alien Verification for Entitlements (SAVE) program. The new video describes the immigration status verification process and explains how federal, state, and local benefit-granting agencies can apply to participate in the program. USCIS encourages agencies to view the video to determine if the SAVE program is appropriate for their immigration status verification needs. The SAVE program is an intergovernmental initiative that assists benefit-granting agencies in determining an applicant’s immigration status. The program ensures that only entitled applicants receive federal, state or local public benefits and licenses. Additionally, SAVE offers eligible agencies an efficient, secure and cost-effective method of immigration status verification. Specifically, the program checks the applicant’s information against millions of federal database records. Currently, more than 300 agencies are enrolled in the SAVE program. The video, along with additional information about the SAVE program, is available at www.uscis.gov/SAVE or by submitting a request to SAVE.help@dhs.gov (write “SAVE Informational Video” in the subject line.

Department of Homeland Security Issues: Final Rule Rescinding "No-Match" Regulation

On October 6, 2009, the Department of Homeland Security (DHS) announced that it will issue a final rule, to be published in the Federal Register on October 7, 2009, rescinding the embattled “No-Match” regulation.  As we have previously reported, DHS is of the opinion that the receipt of a “No-Match” letter provided constructive knowledge to an employer that an employee may not be authorized to work. This rule would have created a “safe-harbor” procedure for employers to respond to “No-Match” letters, thus clearing employers from any knowing hire liability for that worker. 

DHS first announced its intention to rescind the “No-Match” rule on August 19, 2009, through the publication of a proposed rule. This action was the culmination of months-long federal litigation concerning whether or not the rule had been lawfully promulgated and whether or not it was constitutional.

In taking this step, effectively abandoning the litigation, DHS stated as follows: “After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

Employers beware, upon publication of the rule we fully expect the Social Security Administration to begin issuing new “No-Match” letters and DHS will still consider the receipt of a “No-Match” letter as an indicator of unauthorized employment.  Although there will be no “safe-harbor,” employers should have a plan and procedure in place to address the receipt of a “No-Match” letter. Having a proper plan in place not only helps an employer maintain the integrity of its workforce from an immigration perspective, but also assists an employer in meeting its W-4 reporting requirements with respect to Social Security withholdings.

USCIS Issues Additional Guidance On Academic Qualifications For Certain H-1B Health Care Specialty Occupations

On July 17, 2009, USCIS issued guidance to certain employers who have received an erroneous denial of a Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation.  This guidance was necessitated by a series of USCIS decisions denying H-1B petitions for health care specialty occupations.  Relying on erroneous information contained in DOL publications, the USCIS wrongly concluded that certain health care specialty occupations required at least a master’s degree and then denied the H-1B petitions when the employee beneficiary lacked this degree.

 

To address this problem, Barbara Velarde, Chief of USCIS Service Center Operations, issued a memorandum, dated May 20, 2009, entitled, “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation.”  This memorandum clarified the standards for H-1B health care specialty occupations so that USCIS examiners would adjudicate these petitions correctly.

 

The July 17, 2009 guidance permits employers who have received an erroneous H-1B petition denial to seek additional review from the USCIS instead of filing an appeal.  However, the USCIS will not review any case on its own.  USCIS will review an H-1B petition denial only if it has received a written request from the petitioning employer/representative.  These requests for review may be filed electronically and should include “PT/OT Service Motion Request” in the subject line.  USCIS will accept requests through August 14, 2009.

 

Requests for review of H-1B health care specialty occupation petitions adjudicated at the California Service Center should be sent to: csc-ncsc-followup@dhs.gov.  Requests for review of H-1B health care specialty occupation petitions adjudicated at the Vermont Service Center should be sent to: vsc.ncscfollowup@dhs.gov.  Requests for review need not include a copy of the May 20, 2009 Velarde memorandum, but they must explain how the beneficiary meets the standards set forth in the memorandum.  Furthermore, as with any H-1B petition for a health care worker, the evidence must show that the beneficiary is eligible to practice in his or her particular health care occupation in the state of proposed employment.

 

Remember, this Friday, August 14, 2009 is the last day that USCIS will accept employer requests for review of erroneous denials to H-1B health care specialty occupation petitions.

 

U.S. Senate Approved Several Amendments Dealing With Immigration Enforcement Not Included In The 2010 Homeland Security Appropriations Bill (H.R. 2892)

On Wednesday, July 8, 2009, the Senate approved several amendments dealing with immigration enforcement and benefits which were not included in the 2010 homeland security appropriations bill (H.R. 2892) passed previously by the House. An amendment introduced by Senator Jeff Sessions (R-Ala) dealing with E-Verify was passed by a voice vote after a motion by Sen. Schumer (D-NY) to table it was rejected 44 to 53. Sen. Sessions’ amendment is extremely important because it could make the voluntary E-Verify program, in its present form, permanent and mandatory for all federal contractors beginning September 8, 2009.

The final federal contractor’s rule, which extends the use of E-Verify to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, came as a result of Executive Order 12989. The rule was originally scheduled for roll-out last January 15, 2009, but had to be postponed because of a lawsuit filed by the U.S. Chamber of Commerce in the U.S. District Court for the District of Maryland challenging the legality of the rule.

The version of the bill passed previously by the House on June 24th would extend the E-Verify program for only two years. Thus, the existing differences between the amended version passed by the Senate and the House bill will have to be reconciled and a final version will need to be agreed upon in conference before changes can take effect.

Secretary Napolitano announced early on July 8th the department’s intention to rescind the controversial No-Match Rule in favor of the “more modern and effective” E-Verify. In a surprising but decisive response, the Senate also adopted an amendment from Senator David Vitter (R-LA) that would prohibit the U.S. Department of Homeland Security (“DHS”) from using any Fiscal Year 2010 appropriated funds to rescind the No-Match Rule.

Sen. Schumer, who led the effort to table Sen. Session’s amendment, stated that declarations made earlier by DHS Secretary Janet Napolitano that the Administration would support a regulation that requires employers to use E-Verify in order to be awarded federal contracts had rendered the amendment “moot.”

However, the real reason for Sen. Schumer’s opposition is that the present administration wants to enact immigration compliance laws that target employers and, Republicans, now the minority in the Senate, want to enact immigration compliance laws targeting employees. But in a surprising move, supported by a few Democrat senators, all amendments dealing with immigration enforcement offered by Republicans were approved.

More concerning for employers, however, is the apparent administration’s pursuance of a more capable and technologically advanced version of E-Verify. Sen. Schumer has stated repeatedly that E-Verify does not “go far enough” and made clear in several occasions that he favors a hi-tech employment verification system which employs biometric identifiers such as fingerprints, eye scans, and more. Similarly, Secretary Napolitano, who believes E-Verify is a “smart, simple and effective tool” has also made clear, in agreement with Sen. Schumer that “we need to continue to work to improve E-Verify, and we will.”

These declaration not only indicate that the Obama administration and key democratic leaders in Congress share the view that immigration compliance should target employers, but also, as it would appear, through the use of an “improved” or, in other words, a more capable and technologically advanced E-Verify that could include not only biometric identifiers, but also information sharing capabilities linked to other governmental agencies. 

The possibility of an “improved” version of E-Verify does not seem far-fetched when considered in light of present existing Memorandums of Understanding between governmental agencies which already allows for information sharing, past joint raids, and an appropriations bill which provides for $5.4 billion to fund DHS’s employment verification activities.

Further, such “improved” E-Verify, despite the potential tremendous governmental invasion into the workings of private institutions, could give the Obama administration a serious “footing” in dealing with millions of illegal immigrants, which can be “politically” cashed at a later time. 

So far it is unclear what immediate effects the Sessions and Vitter amendments would have if enacted. Both the federal contractor and No-Match Rules are currently suspended due to ongoing litigation.

USCIS Issues Guidance on Employment Eligibility Verification Form: Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

U.S. Department of Homeland Security Issues A Second Fact Sheet On Secretary Napolitano's Approach To Worksite Enforcement

On April 30, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), issued a second fact sheet with a brief overview of Secretary Napolitano’s approach to worksite enforcement. The fact sheet emphasizes that:

1.  ICE will continue “to arrest and process for removal any illegal workers found in the course of worksite enforcement actions in a manner consistent with immigration law and DHS priorities.”

2. ICE will “use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.”

3. Like “other white collar crimes, ICE worksite enforcement cases can be complex and lengthy, sometimes requiring months or even years of follow-up investigation.”

4. In “many instances, these cases not only involve violations of the Immigration and Nationality Act (INA), but frequently reveal a host of other crimes, such as alien smuggling, document fraud, identity theft, money laundering, and wage and labor violations.”

5. The “leads that spark a worksite investigation come from an array of sources - tips from the public, reports from a company’s current or former employees, even referrals from other law enforcement agencies.” And that,

6. Once “a lead is received, ICE agents will employ a variety of techniques to investigate the allegations, including the use of undercover agents, confidential informants, cooperating defendants, and surveillance.”

The new fact sheet makes a few additional revealing points. As I predicted, first and foremost the government’s approach to worksite enforcement, as applicable to employers, will be from a “white collar” perspective.  But only "administrative" when applicable to undocumented workers.  Moreover, ICE will focus only on issues from which it can haul up criminal charges against the employer to justify its criminal investigative techniques. ICE will not only share information but also conduct joint investigations with other governmental agencies. Very importantly, “leads” will also come from electronic employment verification programs such as E-verify and the like. 

We will continue reporting and keeping you updated on worksite enforcement developments. 

DHS Issues a Fact Sheet on New Worksite Enforcement Strategy

On April 30, 2009, the U.S. Department of Homeland Security (“DHS”) issue a Fact Sheet in connection with its new worksite enforcement strategy.  The new worksite enforcement strategy shifts its enforcement focus from undocumented workers to employers. We predicted this shift in strategy back in March of 2009 (See Obama Administration's Immigration Approach with Napolitano will Point to Employers). 

The DHS’s new worksite enforcement strategy seeks to:

Pursue a strategy that addresses both employers who knowingly hire illegal workers as well as the workers themselves.

Reflect a renewed department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers.

Focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.

Continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Moreover, to use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

To hold ICE to a high investigative standard which will include:

Looking for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.

Obtaining indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.

DHS’ Fact Sheet also states that "existing humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers, which reflects a change from the previous threshold of 150; it is committed to providing employers with the most up-to-date and effective resources to comply with our nation’s laws; it will continue to work with partners in the public and private sectors to maintain a legal workforce through training and employee verification tools like E-verify, which improve the accuracy of determinations of employment eligibility and combat illegal employment."

USCIS Updates FY 2010 H-1B Count (Updated 4/21/09)

April 20, 2009 H-1B Cap Count

 On April 20, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 20, 2009, approximately 44,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.

 April 17, 2009 H-1B Cap Count

On April 17, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 13, 2009, approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.

Cite as AILA InfoNet Doc. No. 09042065 (posted Apr. 21, 2009)

Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers

One of my articles,  Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers, was recently published by ILW.  I am reproducing it here in its entirety for your perusal: 

"President Obama made it clear that his immigration plan, among other things, was to "remove incentives to enter illegally." However, the Obama administration has not provided any details as to how is going to accomplish this portion of its plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama administration has sent out "immigration signals" and U.S. employers should be prepared.

The most important of these immigration signals, perhaps, was Secretary Napolitano's appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration's plan. This is not only part of a well calculated move, but, as it would appear, the foundational step necessary to set President Obama's immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with clear enforcement views. She is one of the most experienced state executives in the nation in the immigration arena and one of the very few high ranking democrats qualified, should one be enacted, to handle a comprehensive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a "technology-driven border control" and the penalizing of employers hiring undocumented workers.

Secretary Napolitano has indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on "unscrupulous employers" rather than on undocumented workers. She has also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers "of unlawful workers are prosecuted for their violations."

Moreover, Napolitano has pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to "establish sound compliance programs that prevent unlawful hiring." She also aims to continue boosting manpower on the borders and the use of technology. At the same time, she has stated that her full intention is to enforce these methods in a fair manner across borders, ensuring that the law is applied. This, of course, represents a 180 degree shift from the Bush administration's approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecute employers.

In short, comprehensive immigration reform, whether in piece-meal or in one whole act, will be enacted. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the "DEA-type" actions with all their inefficiencies and social negative effects seen under the Bush administration. Under Secretary Napolitano, possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called ICE "inspections" will continue and, possibly, increase. Investigations conducted by the FDNS (Office of Fraud Detection and National Security) to detect, deter, and combat immigration benefit fraud to strengthen USCIS' goals and efforts will also increase. Technology based programs such as E-verify will rule and many could become mandatory for all U.S. employers. Immigration attorneys will be well served by advising their corporate clients to put their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order."

Obama Administration's Immigration Approach with Napolitano will Point to Employers

President Obama made it clear that his immigration plan was to “bring people out of the shadows, improve our immigration system, create secure borders, remove incentives to enter illegally and honor our immigrant troops.” However, the Obama administration has not provided any details as to how it is going to accomplish this plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama has sent out “immigration signals” and employers should be prepared to feel the effects.

The most important of these immigration signals was Secretary Napolitano’s appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration’s plan. This is not only part of a well calculated move, but the foundational step necessary to set President Obama’s immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with strong enforcement views. She is one of the most experienced state executives in the nation with immigration and one of the very few qualified to handle a massive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a “technology-driven border control” and the penalizing of employers hiring undocumented workers.

Secretary Napolitano indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on “unscrupulous employers” rather than on undocumented workers. She also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers “of unlawful workers are prosecuted for their violations.” Moreover, Napolitano pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to “establish sound compliance programs that prevent unlawful hiring.” She also aims to continue boosting manpower on the borders and focusing on technology, such as ground sensors. At the same time, it is her full intention to enforce these methods in a fair manner across borders, ensuring that the law is applied.

This represents a 180 degree shift from the Bush administration’s approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecuting employers under the theory that actual convictions were hard to get.

In short, immigration reform, whether in piece-meal or in one whole swap, will be enacted in 2009 or 2010. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the “hyper-criminalized” actions conducted under the Bush administration with their inefficiencies and social negative effects.

Under Secretary Napolitano, DHS, the Immigration and Customs Enforcement, and possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called “inspections” will escalate. Technology based programs such as E-verify will rule and could become mandatory for every employer in the U.S. Wise employers will be served well by putting their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order.
 

ESTA Becomes Effective For VWP Travelers

Effective January 12, 2009, all foreign nationals traveling to the US under the Visa Waiver Program ("VWP") must comply with Electronic System for Travel Authorization ("ESTA") requirements. ESTA is a web-based system that determines the preliminary eligibility of individuals to enter the United States. Since its launch in August 2008, more than 1.2 million ESTA applications have been processed, resulting in an approval rating of greater than 99.6 percent. Most applications are processed in seconds, according to the U.S. Department of Homeland Security ("DHS").

Foreign nationals citizens of VWP countries, who are seeking entry to the U.S. with a visa instead of under the VWP, do not need to use ESTA. While an ESTA approval is required before a VWP traveler can board an international carrier bound for the United States, U.S. Customs and Border Patrol ("CBP") may still deny entry to a VWP traveler.

The citizens of countries currently eligible to travel to the United States under the VWP are: Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

 

Krome Detention Center in Miami Launches New Program To Speed Up Court Proceedings

DHS' Krome Detention Center in Miami launched a new program aimed to speed up immigration court proceedings immigrants facing deportation.

According to the South Florida Sun-Sentinel, Krome Detention Center has cut an average of 13 days off the time it takes to process deportation cases. An independent study of the center reveals that the Krome Detention Center presently processes cases in 27 days versus the 40 day processing averages of most immigrant detention centers nation wide.

This cut is significant, not only because detention time is reduced, but also because it saves millions of dollars. The cut has also an added benefit, it allows the court system to run more efficiently.

The new program includes orientation, which is intends to give detainees a better overview of their right and the legal process. Orientation includes providing information on available pro-bono lawyers and general information which will allow better pro-se representation. Orientation also provides detainees with information on whether they have legal standing to be in the US. The aim is to make it clear that it is best to have short court proceedings, which will save them legal fees.

“This program is extraordinarily important because there are people in the detained setting that are giving up their rights’ to stay in the country,” said Linda Osberg-Braun, president of the American Immigration Lawyers Association’s South Florida chapter.

Although this program is not new (it was originally launched in 2003 and currently available in 13 sites), the program now at the Krome Detention Center is considered by some, exceptionally successful.
 

DHS/CBP's Electronic System For Travel Authorization - Mandatory Compliance Required For Travel Under The Visa Waiver Program

 The Department of Homeland Security ("DHS") announced that all nonimmigrant aliens traveling to the United States under the Visa Waiver Program ("VWP") will have to obtain travel authorization from the Department’s Electronic System for Travel Authorization ("ESTA"). To comply with ESTA, VWP travelers must provide electronically to U.S. Customs and Border Protection ("CBP") the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA website and receive authorization to travel before embarking on travel to the United States.

 

DHS Announces Secure Flight Program

On October 22, 2008, DHS announced issuance of the final Secure Flight Final Rule (the “SF Rule”). This followed a Notice of Proposed Rulemaking issued in August 2007. In its final form, the SF Rule shifts responsibilities for review of pre-departure watch lists from individual aircraft operators to the Transportation Security Administration (“TSA”) or CBP. This implements a key recommendation of the 9/11 Commission by giving the government responsibility for monitoring watch lists.

Under the SF Rule, airlines now are required to collect the passenger’s full name, date of birth and gender when making an airline reservation. The TSA will receive this information and determine if it matches any “No Fly” or “Selectee” list maintained by government law enforcement agencies. The result will be returned to the airline, after which the passenger data in most cases will be destroyed to address civil liberties concerns.

Domestic and international carriers, and industry associations, have expressed many concerns in connection with the implementation of the SF rule. Among those, the fact the industry in general will need at least six months to upgrade its reservation and departure systems in order to come into compliance with the rule. Implementing the rule will also be extremely expensive, particularly, for an industry that has sustained large economic losses and operates almost at break-even point. Other concerns include travel disruption since the rule requires bulk buyers to provide the identities and personal information of each passenger 72 hours in advance of a flight; the disruption of foreign carriers operations by requiring passengers to be screened even if a flight does not intend to land in the United States; and the creation a data collection system likely to be at odds with other DHS data collection programs. The SF Rule will be implemented in two phases. First TSA will assume watch list responsibility for domestic flights in early 2009. Later that year, CBP will be given similar responsibility for international flights.

Des Moines Register's Critics Tie Scant New Charges to Wariness After Postville Raid

On August 28, 2008, The Des Moines Register published  a story by Tony Leys entitled "Critics tie scant new charges to wariness after Postville raid."  Florida employers would be well served if they read it.  I reproduce the story in full here below:
 

"Critics of the way suspected illegal immigrant workers were handled after last May's raid in Iowa noticed a change in government tactics after this week's raid in Mississippi. Federal officials detained 595 workers at a Mississippi electric-transformer factory Monday but filed criminal charges against just eight of them. That's in marked contrast to what happened after the raid at the Agriprocessors meatpacking plant in Postville, where prosecutors filed criminal identity-theft charges within days against 305 of the 389 workers who were arrested. Most of those people quickly pleaded guilty during mass hearings held at the National Cattle Congress grounds in Waterloo and now are serving five-month prison sentences. Most of the workers arrested in Mississippi are being held on civil immigration charges, which generally lead to deportation. A spokeswoman for the Immigration and Customs Enforcement agency would not specify why so few of the Mississippi workers had been charged with crimes. She said more charges could still be added. But one of the most prominent critics of the legal process used in Iowa said Wednesday that the government appears to be backing away from those tactics. "I think Postville was a huge embarrassment because of the criminalization of workers," said Erik Camayd-Freixas, a veteran federal courts interpreter who participated in the Cattle Congress hearings. Camayd-Freixas, who is a Spanish language professor at Florida International University, made national waves this summer by publicly complaining that the legal process used in Iowa was unfair to the defendants. He said uneducated Guatemalans and Mexicans were pressured into pleading guilty to identity-theft charges, even though they didn't realize the Social Security cards they'd bought contained someone else's numbers. The vast majority had never been charged with other crimes, he said, and they had no intent to commit identity theft. Camayd-Freixas said Wednesday that in his 20 years of working with the federal courts, he'd never seen mass, rushed hearings such as those held in Iowa. He noted that news reports from Mississippi indicated that the eight people who were charged with crimes after the raid there had been taken to a regular federal courthouse for standard hearings. ICE spokeswoman Barbara Gonzalez said more criminal charges could be filed against people seized in the Mississippi raid. She said that too often, Americans believe raids indicate the end of investigations. "They don't," Gonzalez said. "In fact, the investigation continues." Federal prosecutors did not respond to requests for comment. The Mississippi raid surpassed the size of the one in Postville, which had been described as the biggest single-site immigration raid in U.S. history. A national group calling for tougher immigration enforcement declined to speculate Wednesday on why the Mississippi raid hadn't brought more criminal charges. The facts of individual cases could be much different, said Ira Mehlman, spokesman for the Federation for American Immigration Reform. Among the Agriprocessors workers, he said, "there were a lot of things besides just working in the country illegally." Drake University law Professor Bob Rigg said the process being used in Mississippi looks familiar. "That used to be the norm until Postville," said Rigg, who has criticized the prosecution methods used in Iowa. He said it's hard to tell why the government hasn't filed mass charges in the latest case. But lawyers around the country are aware of the Iowa controversy, Rigg said. Among other things, it led to a critical New York Times editorial titled "The Shame of Postville." "It could be the U.S. attorney in Mississippi decided, 'I'm not going to go through that,' " Rigg said."

GAO on E-Verify

In its report of June 2008, the U.S. Government Accountability Office (GAO) stated that while E-Verify may help employers detect fraudulent documents (and I would say indirectly), it cannot fully address the use of legitimate documents.  This issue can only be fully addressed by individuals owning those documents. The GAO also points out that E-Verify is vulnerable to employer misuse and even, fraud. 

Given our adversarial system many employers worry that firing an employee based on what could turn out to be an E-verify error could still land them a discrimination charge under the Immigration Reform and Control Act of 1986 (IRCA). IRCA prohibits discrimination when hiring and firing based on the basis of citizenship status or national origin.  Such discrimination could result from firing an individual based on lack of employment authorization when the individual is in reality authorized. 

Federal Government Contractors Must "E-Verify" Employees' Eligibility To Work

On June 9, the White House announced that President Bush had signed on June 6 an Executive Order (“the Order”) amending Executive Order 12989. The Order, an aggressive move to keep illegal immigrants out of the US workforce, requires contractors and others doing business with the federal government to use E-Verify (formerly known as the Basic Pilot or Employment Eligibility Verification Program). E-Verify is an electronic employment verification system run by DHS in partnership with the Social Security Administration, which permits participating employers to electronically verify the employment eligibility of newly hired employees. E-Verify is voluntary for private companies, but mandatory for government agencies. The Order, which will also apply to new hires initially, in time, will affect millions of workers working for federal contractors nationwide. 

One of the problems with the Order requirements is that E-verify has shown some critical flaws even when operating in a relatively small environment.  E-Verify is also problematic from a business perspective because errors in the Social Security database can lead to flagging legal residents and citizens.  The June 10th's issue of the LA Times states that "Chertoff said E-Verify cleared 99.5% of qualified employees automatically. But in 2006 the Social Security inspector general found discrepancies in 17.8 million records for citizens and legal immigrants that would create a "significant workload" to correct. Lawmakers and other critics warned that forcing the more than 200,000 federal contractors to join E-Verify could overwhelm the Social Security Administration and create havoc for legal workers. 'As the administration requires more employers and workers to move into E-Verify, it should at the same time ensure that the system does not impinge upon U.S. citizens' fundamental right to earn a living,' said Rep. Zoe Lofgren (D-San Jose), head of the House subcommittee on immigration. Firms doing business with the government risk losing their contracts if they break federal rules. Some business executives worry the new requirement could add expenses. 'There's concern about increased costs and delays in hiring brought about by inaccuracies in the database,' said Neal J. Couture, executive director of the National Contract Managers Assn. Timothy D. Sparapani of the American Civil Liberties Union argued that E-Verify was 'not real immigration enforcement' because the system could not detect applicants who used documents stolen from legal workers. He predicted the system would prompt more identity theft by illegal immigrants.' 'American workers' identities are essentially going to become a black market commodity,' Sparapani said."

The Order states that the basis for requiring government contractors to use E-Verify is that the “Order is designed to promote economy and efficiency in Federal Government procurement. Stability and dependability are important elements of economy and efficiency. A contractor whose workforce is less stable will be less likely to produce goods and services economically and efficiently than a contractor whose workforce is more stable.”  I find the government’s statement suspicious because the government, although it has failed time and time again, has tried on repeated occassions to push legislation or regulations that would impose a mandatory electronic employment verification program on all US employers. Further, the Order is presented as being designed to promote "economy and efficiency" along with "stability and dependability," but the reality is that there is nothing economic, efficient, stable or dependable about skilled and unskilled jobs that cannot be filled because there are not enough American workers readily available to work. 

Interestingly, employers in the health care business using the Medicare program, janitorial services providing services to courts, universities getting federal student loans for its students or grants for some of its projects and programs, companies in the defense industry, and even contractors serving food in cafeterias in any government agency will be considered government contractors and will have to comply with this order.

The government in its zeal for security and enforcement is failing to consider the true economic impact these measures will have on employers and consumers. Enforcing this type of order in the absence of immigration reform which could provide employers with helpful avenues could doom - against contrary government opinion - many efficient employers.  I am not sure how the government is going to enforce this Order, but for us in Florida enforcing these measures could have a long lasting negative effect.

Electronic Employment Verification System ("EEVS") News

This week, the House Immigration Subcommittee will hear comments and discuss the challenges and problems that mandatory nation-wide EEVS program could pose.

EEVS, a deeply flawed program, is the core center of the “SAVE Act.” The SAVE Act  was introduced in Congress in November of 2007 by Reps. Heath Schuler (D-NC) and Tom Tancredo (R-CO).

The EEVS proposal would require every employer in the United States to verify the employment eligibility of their workers through the EEVS database. More importantly, the EEVS proposal requires both citizens and non-citizens alike to obtain and present newly proposed documents such as a Social Security Card and Driver’s License that are compliant with the Real ID Act in order to work or continue working in the US. In practical terms, it means that everyone in the US would have to obtain “permission” from the government to get a job. Further, EEVS would require every person in America to carry a new and improved biometric Social Security card containing biometric information that could include fingerprints, retina scan and even, DNA. Unfortunately, the hopes of many government officials is that EEVS will serve as a magic solution to undocumented immigration.

Immigration Compliance for Florida Employers

Between February 21 and 22 of 2007 three executives of Rosenbaum-Cunningham International, Inc. (“RCI”), a Florida-based national cleaning contractor, were charged with conspiracy to defraud the United States and to harbor illegal aliens for profit. They were also charged with evading payment of federal employment taxes.

The 23-count indictment charged that these individuals operated a cleaning and grounds-maintenance service that contracted with theme restaurant chains and hospitality venues throughout the United States and staffed the cleaning crews with undocumented foreign nationals. According to the indictment, the federal authorities charged the three janitorial company executives of embezzling more than $18.6 million by failing to collect and pay federal income, Social Security, Medicare and federal employment taxes on the wages paid to its workforce, hundreds of illegal immigrants from Mexico, Central America, and Haiti. RCI allegedly hired illegal immigrants, paid them in cash and never required them to provide identification or fill out job applications or tax forms.

RCI’s president, vice president and controller were arrested along with more than 200 of the Florida-based company’s employees at 64 locations in 18 states and the District of Columbia, in a sweep by Immigration and Customs Enforcement (“ICE”). The employees were arrested as they were starting or leaving their shifts. According to ICE leadership, the sweep resulted from a 20-month investigation conducted by ICE agents sparked by the arrest of an illegal alien in Grand Rapids, Michigan.

One of the most interesting aspects of this case is that RCI clients (2001-2005) included House of Blues, Planet Hollywood, Hard Rock Café, Dave and Busters, Yardhouse, ESPN Zone and China Grill. It appears there is no evidence that any of the companies were complicit. In the mean time, RCI has ceased operations as of February 22, 2007.

Until recently, employers who were targeted for a raid usually faced only civil fines and deportation of their illegal workers. However, since 2006, ICE has focused more and more on enforcing criminal penalties including felony charges that have lead to huge fines and asset seizures. Additionally, employers have been charged with criminal violations such as money laundering, alien harboring, illegal alien employment and wire fraud. The DHS has also stated that it hopes increasing the harshness of the penalties encourages employers to comply with laws against hiring illegal workers.

The years 2006 and 2007 have not only seen an increase in the scope of employer liability, but also an effort by the government to clarify employers’ duties when it comes to resolving discrepancies in an employee’s eligibility to work in the United States. Specifically, ICE proposed a rule in June 2006 that expanded the notion of constructive knowledge as it relates to an employer’s liability that is found to have hired illegal workers. It also described “safe-harbor” procedures for employers who receive a “no-match letter” from the SSA or DHS.

Related to the notion of constructive knowledge, there appears to be a trend towards seeking employer liability even where its contractors or sub-contractors hire illegal workers. Current regulations state that an employer who knowingly or with reckless disregard contracts to obtain the labor of an unauthorized alien will be considered to have hired the employee. Incredibly, in terms of raids already conducted by ICE, in spite of the many industries targeted by ICE existing in our state (i.e. construction, agriculture, hospitality, retail, etc.) Florida has not been an “active” place. We do not hear much about ICE in Florida. But, just as RCI, simply put, employers should not make the mistake of assuming that ICE will not come and raid them.  Employers should be prepared for when it comes. Our state has too many industries which are the focus of ICE’s interest. Given the focus on employer liability for hiring illegal workers, there are various ways employers can proactively protect themselves against not only government investigations and ensure compliance with potential new laws and regulations, but also from service providers who may be hiring undocumented workers. Employers cannot afford neglecting these important tasks.

The US-Visit Program - DHS' Notice of Proposed Rulemaking on the Collection of Alien Biometrics Data upon Exit from the United States at Air and Sea Ports of Departure - Bad for Business and Bad for Florida

On April 24, 2008, the Department of Homeland Security (“DHS”) issued a rulemaking proposal that will require aliens subject to US-Visit to provide, upon entering and before departing from the US, biographic and biometric information to commercial air and vessel carriers at air and sea ports of entry.

US-Visit is part of a continuum of security measures that begins overseas and continues through a visitor’s arrival in and departure from the US. It incorporates eligibility determinations made by both the DHS and the U.S. Department of State. The proposed rule requires commercial air carriers and vessel owners and operators to collect and transmit this biometric exit information to DHS, in conjunction with passenger manifest information already being collected and submitted by the carriers. However, the DHS rule would not apply to small carriers and vessel owners and operators, or to general aviation.

DHS’ rule proposes a “performance standard” for commercial air and vessel carriers to collect the biographic and biometric information and to submit the information to DHS no later than 24 hours after air carrier staff secure the aircraft doors on an international departure, or for sea travel, no later than 24 hours after the vessel’s departure from a US port.

According to the proposed rule, carriers will collect the covered aliens’ biographic and biometrics prior to covered aliens international departure. The biometric information must be collected using a biometric collection device that meets the technical specification identified by US-Visit, which must comply with the Integrated Automated Fingerprint Identification System (IAFIS) Image Quality Specifications. The carrier will then package this personally identifiable information (“PII”) and transmit it to DHS, using standards provided by DHS. Data transmission will take place over an encrypted network between the carrier industry and DHS. The encrypted networks must comply with the standards set forth in the Interconnection Security Agreements (ISAs) required to be executed prior to external access to DHS systems. Once the PII is received by DHS, DHS will acknowledge receipt to the carrier.

Under the rule, carriers are responsible for the accuracy of the biometric data captured from the covered alien and any other transmitted data. Carriers will also have to collect the biometrics directly from the covered alien. Carriers will have to comply with DHS standards for the secure storage and transmission of the biographic and biometric information. Carriers will have to comply with the IAFIS Image Quality Specifications. Carriers will have to comply with DHS standards for purging their systems of PII secured for and transmitted to US-Visit. Carriers will also have to immediately notify the Privacy Officer of US-Visit in writing in event of unauthorized use or access, or breach of biometric departure manifest information. Needless to say, carriers will have to register their carrier system with DHS, and registration will be contingent upon compliance with standards guidance for carrier systems to be issued by DHS in conjunction with the Final Rule.

Along with all the above-imposed obligations, there is a major obligation the government does not seem to contemplate, and, as it would appear, not to care, the heavy economic burden imposed on the carriers to implement the requirements of the rule. Under the new rule carriers will have to invest millions of dollars in man-hours, programs, system, procedures and more.  Carriers will have to implement the requirements of the rule or simply cease to do business in the US. This particular rule deals an overwhelming negative economic impact on an industry already operating, generally speaking, at the brink of bankruptcy. Add to this, the fact that we live in a state with a complex economy that depends greatly on tourism, and in a country in “transition” with a weakening economy, which has partly resulted from the restrictive immigration requirements imposed by the government, the results are not difficult to foresee. 

South Florida is an important spot for tourist and business visitors, and investors from Europe, Middle-East, and especially from South and Central America. Our state economy depends a great deal on these foreign visitors. This particular rule may not only affect the carriers that bring them here, but will also have a negative effect on industries such as hospitality, banking, real estate, retail, and many others that depend on these visitors. Even further, these requirements would also be imposed along all Florida airports adding further delays and negative economic effects to the different local economies. From a Florida perspective, the new rule is not helping to demonstrate that we remain a welcoming state. DHS' proposed rule might implement a security measure that meets the requirements of the 9/11 commission, but the reality is that it deals another critical economic blunder to the carrier industry, and given its many air and seaports, to Florida as well.

DHS is presently accepting comments about this proposed rulemaking, which are due no later than June 23, 2008. DHS is also holding a hearing on Friday, June 13, 2008, from 9:30 a.m. to 4 p.m., EDT, at the Hyatt Regency Crystal City at Ronald Reagan Washington National Airport (2799 Jefferson Davis Highway, Arlington, Virginia, 22202).