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.
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

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
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 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 or by submitting a request to (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 Announces Extension of Form I-9

The U.S. Citizenship and Immigration Services ("USCIS") announced on August 27, 2009, that the federal Office of Management and Budget has approved an extension of the current Form I-9 to August 31, 2012.  As a result, the USCIS has amended the Form I-9 to reflect an updated revision date of August 7, 2009.  This revision date appears in the lower right hand corner of the form. The USCIS has indicated that employers may use the Form I-9 with a revision date of either February 2, 2009 (the prior revision date) or August 7, 2009 (the current revision date).  The Form I-9 is available at the following web site:

SAVE Act Reintroduced in House and Senate

On July 23, 2009, a bipartisan group in the House and Senate reintroduced “The Secure America Through Verification and Enforcement Act” (“SAVE”), which would require employers to use E-Verify to ensure that their workers are authorized to work in the country. This SAVE legislation is largely the same as the bill first introduced in Congress on November 6, 2007.  According to its sponsors, the SAVE is designed to reduce illegal immigration by gradually phasing in the use of E-Verify and increasing border security with additional border patrol agents and new technology and infrastructure.

The SAVE legislation would phase in the mandatory use of E-Verify by employers over a four year period, starting with the federal government, federal contractors, and employers with more than 250 employees. Smaller businesses would be required to begin using the E-Verify system in a graduated manner. While passage now is uncertain, the reintroduction of the SAVE legislation reflects the public’s growing desire that employers hire and maintain only a documented workforce. Considered in this context, and examined against all the states that have passed legislation requiring the use of E-Verify, employers would be well advised now to become familiar with E-Verify so they can readily incorporate it into their operations when it becomes mandatory at the federal level.

Krispy Kreme Doughnuts, Inc. Fined For Hiring Foreign Workers Not Authorized For Employment

Tuesday ICE stated that last Friday Krispy Kreme reached a $40,000 fine settlement with the government for violating U.S. immigration laws by hiring illegal worker. ICE stated that an inspection at a Krispy Kreme factory in Cincinnati  revealed that the company employed many foreign workers who were not authorized for employment. The inspection also showed that the company did not have the required paperwork for all workers at the factory. As part of the settlement, Krispy Kreme has taken measures to revise its immigration compliance program, and has agreed to begin implementing new procedures to prevent future violations of federal immigration laws, ICE said.

H-1B Worker Wins Injunction Requiring Employer Sponsorship

On June 11, 2009, a federal district court issued an injunction that required the University of Pittsburgh to sponsor a Russian biologist for an H-1B extension and continue her employment until her claims of discrimination in her discharge can be resolved. Karakozova v. University of Pittsburgh, No. 09-cv-0458 (W.D. Pa. June 11, 2009). The Karakozova decision represents the latest decision that injects the courts into what previously had been considered the employer’s unlimited discretion in sponsoring an employee for any immigration benefit, including H-1B classification. We reported last year on the Lionbridge decision, in which the 10th Circuit found that the employer violated a fiduciary obligation created by its vague immigration sponsorship policy by failing to sponsor an H-1B employee for permanent residence. These decisions unfortunately appear to represent increased judicial intervention into an employer’s sponsorship decisions and thus place a premium on the organizational policies that define the employer’s obligations in this area.

Alert: ICE Serves 652 Businesses Nationwide With Notices of Inspection

On July 2, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) launched a new and bold initiative to audit companies by issuing Notices of Inspection (“NOIs”) to 652 businesses nationwide.

ICE has stated these “audits are not random” and that the businesses were identified based on “leads and information obtained through other investigative means.” These notices are the government’s first step in what could be the beginning of a very lengthy investigation. ICE officers plan to review the I-9 forms and identification documents of all 652 companies. ICE has also stated that those with significant numbers of undocumented workers may be fined. And, if agents believe the businesses “knowingly hired” illegal immigrants or find “a pattern of egregious violations” criminal investigations could be launched. Pat Reilly, ICE’s spokesperson, said that ICE would not “release the names or locations of the businesses that are being audited because of the ongoing investigations” and that the targeted businesses “represent a broad range of industries.”

However, it has been reported that ICE notified 80 companies in California, including three in Los Angeles, which ICE plans to fine because they employ large numbers of people who do not appear to be authorized to work in the U.S. ICE agents had conducted audits on these companies’ records earlier, and in many cases determined that the Social Security numbers listed for employees either did not exist or did not belong to the employees specified.Targeted companies also include businesses in New York, San Antonio, Seattle, and San Diego. ICE has also sent audit notices to 32 companies in Arizona. For a long time the government has been seeking new ways to impose E-Verify on all US employers. I believe the strategy behind these notices is to paint a picture of rampant immigration violations so, come September 2009, Congress will make E-Verify mandatory for every employer. For as much as the government loves E-Verify, it will never be a substitute for immigration reform or stop illegal immigration.


Now You Can Also Get Your Immigration Updates Through "Twitter"

We are letting our subscribers and friends know they can also follow our immigration news and updates at:


New York Supreme Court Allows Jury to Consider Undocumented Alien's Immigration Status in Valuing Tort Claim for Lost Wages

On June 12, 2009, the Supreme Court of the State of New York, Bronx County, issued a decision that allowed the plaintiff, an undocumented alien who was pursuing a tort claim, to offer evidence of probability that his asylum application would succeed so the jury could evaluate his claim for lost wages. Maliqi v. E. 89th Street Tenants, Inc., Index No. 23309/06 (Sup. Ct. Bronx Cty. June 12, 2009). Under the federal immigration laws, undocumented aliens are not allowed to work. In tort claims where lost wages are concerned, defendants often attempt to use the plaintiff’s illegal immigration status as an absolute legal bar to recovery. In most states, the courts will allow recovery for back wages on the theory that the employer should not benefit from the employee’s labors, especially if its lax application procedures allowed the employee on the organization’s payroll. The issue of how to handle claims of lost future earnings has resulted in different approaches in the various states. Most states agree that an individual’s undocumented status is not an absolute bar to recovery. This is especially the case where the employer either knew of the employee’s lack of work authorization or did not have procedures in place to properly evaluate that work authorization. E.g. Balbuena v. IDR Realty, 6 NY 3d 338 (2006). The question is how does the plaintiff prove that he is legally entitled to the lost future earnings claimed? In the Maliqi decision, the court recognized that the plaintiff’s immigration status was a relevant consideration on any lost future earnings claim. If he remained undocumented, then he had no legal right to future wages. If his asylum claim was granted, however, he might. In a novel approach, the court resolved this conflict by allowing the plaintiff to offer evidence to the jury regarding the likelihood of success for his asylum claim. In essence, the court held that the length of time during which the plaintiff might continue legally earning wages in this country and the prospect of his deportation are factual issues for the jury to determine. (From EBG's Immigration Newsletter)

RICO Immigration Litigation on the Rise

The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§1961 et seq. (RICO), is gaining popularity as a tool by the federal government, employees, competitors and others to combat immigration law violations. The resort to RICO rests in large part on the federal government’s failure to pass comprehensive immigration reform. The attractiveness of RICO as a civil or criminal claim results from its stiff penalty provisions. Successful civil plaintiffs can recover treble civil damages, reasonable counsel fees and injunctive relief if they can prove that the damages they suffered resulted “by reason of” the defendant’s immigration violations. The government finds RICO well-suited for criminal prosecutions in this area because of the ease with which it can prove conspiracy claims and thus connect illegal activities by several defendants. The Askarkhodjaev indictment, for example, contained several RICO counts. During the last month, two class action decisions were issued by the federal courts that emphasized the increased reliance on RICO as a remedy for immigration violations. On May 18, 2009, a federal court in the Eastern District of California granted class certification of RICO claims brought by employees who alleged that the employer, a food-processing company, had depressed their wages by engaging in a pattern of racketeering activity by knowingly hiring undocumented workers at low wages. Brewer v. Salyer, No. 06-1324 (E.D. Calif. May 18, 2009). On May 28, 2009, the United States Court of Appeals for the Eleventh Circuit reversed a district court decision that had denied class certification to the plaintiff employees who sued Mohawk Industries, Inc. claiming that it violated RICO by hiring undocumented workers to drive down their wages. Williams v. Mohawk Industries, Inc., No. 08-13446 (11th Cir. May 28, 2009). The Mohawk litigation has had a long and tortured history in the federal courts. It began in January 2004, and several issues have been on appeal to both the 11th Circuit and the U.S. Supreme Court. As a result of this decision, however, Mohawk now faces the prospect of treble damages if found liable to the thousands of employee plaintiffs that comprise the class. (From EBG's Immigration Alert)


USCIS Announces Resumption of Premium Processing for I-140 Petitions

On June 22, 2009, the U.S. Citizenship and Immigration Services (“USCIS”) announced that on June 29, 2009, it would resume accepting requests to Premium Process Form I-140 petitions involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of the Professions with Advanced Degrees or Exceptional Ability who are not seeking a National Interest Waiver, and EB-3 Professionals, Skilled Workers and Other Workers. Premium Processing still is not available for EB-1 Multinational Managers and EB-2 Members of the Professions with Advanced Degrees or Exceptional Ability who seek a National Interest Waiver. Under the rules applicable to premium processing, the USCIS requires an additional filing fee (presently $1,000) and agrees to adjudicate the petition or issue a Request for Additional Evidence within 15 calendar days. Participants in the premium processing service also have access to a dedicated phone line and email address to ascertain the status of the case or ask questions.



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."

Important Immigration Legislative Announcement Made By Senators Richard Durbin (D-IL) and Charles Grassley (R-IA)


As stated on April 23, 2009 by Senators Richard Durbin (D-IL) and Charles Grassley (R-IA), they will soon introduce a new immigration bill that, if signed into law, will have far reaching consequences for employers of H-1B and L-1 workers.


The H-1B and L-1 Visa Reform Act is expected not only to create new obligations and requirements for U.S. employers, but also to give the government additional authority to audit and investigate them. The bill will require employers to make a good faith effort to recruit and prohibit the displacement of U.S. workers before hiring H-1B and L-1 workers. Moreover, the bill will require USDOL to conduct annual audits of companies who employ large numbers of H-1B workers. The bill will also institute a number of reforms to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.


The content of the bill has not yet been released. It is possible that the bill may also include some of the relief promised by the Obama administration, as Senator Grassley has been cooperating with President Obama in this area.  However, if this bill is signed into law with the stated requirements and obligations without providing any relief, it could have serious negative consequences not only for employers but also for our economy.  H-1B and L-1 visa holders provide a great deal of the technical knowledge and skills our country requires to compete in the global arena.


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.

E-Verify Dropped From Stimulus Bill

A provision in the $787 billion stimulus bill that would have required employers receiving federal stimulus money to use E-verify was dropped from the bill. This move is a victory for employers in the construction business receiving assistance from the stimulus bill.

A representative from the American Civil Liberties Union (“ACLU”) recently stated that E-Verify is "flawed" as an employment authorization verification system and that forcing employers to use it would have held Americans "hostage to bad government data and even worse government database systems."

Also eliminated from the final conference report is a provision that extended the E-Verify program beyond March 6, 2009, when it is set to expire. It is expected, however, that E-verify or a similar program could be established permanently by the Comprehensive Immigration Reform (CIR) sometime before the end of this year.

USCIS Delays Implementation of Interim Final Rule on Documents Acceptable for Employment Verification

On January 30, 2009, U.S. Citizenship and Immigration Services ("USCIS")announced that the effective date of the new Form I-9 (Employment Verification Form) has been delayed for 60 days, until April 3, 2009.

The new Form I-9 was scheduled to take effect on February 2, 2009. The comment period on the new form now runs until March 4, 2009. The temporary extension is designed to provide the DHS with an opportunity to further consider the interim final rule: “Documents Acceptable for Employment Verification” which was published by the USCIS on December 17, 2008. The USCIS has also announced that the old Form I-9 should continue to be used until at least March 4, 2009.

All employers and HR personnel should take note.  Once in effect, old versions of the form cannot be used.


MIAMI (February 4, 2009) – Nationally known immigration attorney, Hector A. Chichoni, a member of Epstein Becker & Green’s (EBG) Miami office, has been appointed National Immigration Counsel by ALTA, the Latin American and Caribbean Air Transport Association.

In his new national role, Chichoni will advise ALTA on U.S. immigration and nationality law issues and legal trends affecting the aviation industry.

Chichoni’s practice focuses on U.S. and global immigration law, and strategic human resource transfers with a wide range of clients that include multinational corporations, health care organizations and universities.

“Mr. Chichoni is a distinguished expert in the area of U.S. and global immigration law with a unique perspective on U.S. aviation-related immigration issues, said ALTA’s Executive Director Alex de Gunten. “Our organization and members will benefit greatly from his extensive knowledge and experience in this fast changing and demanding immigration environment.”

“With his unique combination of extensive legal knowledge and counseling experience, Hector Chichoni is a natural choice for this prestigious aviation industry position,” said Michael W. Casey III, Managing Shareholder of EBG’s Miami office.

“I am pleased to accept this appointment and I am of course delighted to work with ALTA” said Hector Chichoni. “ALTA is a great organization and well known for the caliber of its members. Both EBG and ALTA share emphasis on quality as an essential element of each organization’s culture. I look forward to not only serving and assisting ALTA and its members as National Immigration Counsel, but also to achieving great things together.”

About ALTA:

ALTA,, was founded in 1980 as a non-profit airline association. Its member carriers have total revenue of more than $19 billion, operate more than 800 aircraft and employ more than 70,000 workers in Antigua, Argentina, Bolivia, Brazil, Cayman Islands, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Jamaica, Mexico, Netherlands Antilles, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela, and in other nations the airlines serve.

Member Airlines: Aerogal, Aerolíneas Argentinas, Aeroméxico, Aeroméxico Connect, Aeropostal, AeroRepública, AeroSur, Aires, Air Jamaica, Aserca Airlines, Avianca, Bahamas Air, Caribbean Airlines, Cayman Airways, Cielos Airlines, Click, Copa Airlines, Cubana, GOL, Icaro, LAB, LAN Airlines, LAN Ecuador, LAN Peru, Liat, Mexicana, Nature Air, Pluna, Santa Barbara Airlines, Sky Airline, TACA, TACA Peru, TAM, TAM Mercosur, Tame, VARIG LOG, Volaris, VRG Linhas Aereas. Associate Airlines: Air Canada, Continental Airlines, Iberia and UPS. Affiliate Members: Accenture, Airbus, Amadeus, AON, Arinc, AvGroup, Boeing, CFM, Chevron, Embraer, Lufthansa Systems, Marsh Aviation, NCR, OAG, Petrobras Aviation, Routes, Sabre Airline Solutions, SH&E, Shell Aviation, SITA, Spencer Stuart, Travelport, UATP, Unisys, Wencor, White & Case, Willis.

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.


Federal Officials Report To Have Deported More Than 12,000 Foreign Nationals From Florida, Puerto Rico And The U.S. Virgin Islands In The 12 Months Ending In October 2008

On November 7, 2008, Associated Press reported “Federal officials say they have deported more than 12,000 illegal immigrants from Florida, Puerto Rico and the U.S. Virgin Islands in the 12 months ending in October.” The number of deported foreign nationals provided by U.S. Immigration Customs Enforcement (“ICE”) is actually 12,753. This number includes immigration violators, fugitives, and foreign nationals convicted of deportable crimes (i.e. felonies and certain misdemeanors). This number also represents, roughly, a 25% increase in the number of deportations from the prior fiscal year (9,105). DHS’ fiscal year begins every October 1st.


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.


U.S. Citizenship and Immigration Services ("USCIS") has increased the maximum period of time a Trade-NAFTA ("TN") professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. According to USCIS' official release this final rule changes "the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers." The release also points out that eligible TN nonimmigrants "may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year." USCIS's Q&A, issued simultaneously with the official release, also states "[T]his final rule will extend that period to a maximum of three years to be consistent with other nonimmigrant worker categories, such as the H-1B." The new regulation's summary, although not a part of the regulation, states:

 "This final rule increases the maximum allowable period of admission for TN nonimmigrants from one year to three years, and allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. In addition, this rule grants the same periods of admission or extension to TD nonimmigrants, the spouses and unmarried minor children of TN nonimmigrants to run concurrent. The rule also removes the mention of specific petition filing locations from the TN regulations and replaces the outdated term ``TC'' (the previous term given to Canadian workers under the 1989 Canada-United States Free Trade Agreement) with ``TN.''

The new regulation states in appropriate part:

"(e) Procedures for admission. A citizen of Canada or Mexico who qualifies for admission under this section shall be provided confirming documentation and shall be admitted under the classification symbol TN for a period not to exceed three years. The conforming document provided shall bear the legend ``multiple entry.'' The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the United States pursuant to the terms and conditions of the NAFTA. Upon remittance of the prescribed fee, the TN applicant for admission shall be provided a DHS-issued receipt on the appropriate form...

(g) Readmission. (1) With a Form I-94. An alien may be readmitted to the United States in TN classification for the remainder of the authorized period of TN admission on Form I-94, without presentation of the letter or supporting documentation described in paragraph (d)(3) of this section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1), provided that the original intended professional activities and employer(s) have not changed, and the Form I-94 has not expired.

(2) Without a valid I-94. If the alien seeking readmission to the United States in TN classification is no longer in possession of a valid, unexpired Form I-94, and the period of initial admission in TN classification has not lapsed, then a new Form I-94 may be issued for the period of validity that remains on the TN nonimmigrant's original Form I-94 with the legend ``multiple entry'' and the alien can then be readmitted in TN status if the alien presents alternate evidence as follows:

(i) For Canadian citizens, alternate evidence may include, but is not limited to, a fee receipt for admission as a TN or a previously issued admission stamp as TN in a passport, and a confirming letter from the United States employer(s).

(ii) For Mexican citizens seeking readmission as TN nonimmigrants, alternate evidence shall consist of presentation of a valid unexpired TN visa and evidence of a previous admission.

(h) Extension of stay. (1) Filing. A United States employer of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status, or a United States entity (in the case of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status and is employed by a foreign employer), may request an extension of stay, subject to the following conditions:

(i) An extension of stay must be requested by filing the appropriate form with the fee provided at 8 CFR 103.7(b)(1), in accordance with the form instructions with USCIS.

(ii) The beneficiary must be physically present in the United States at the time of the filing of the appropriate form requesting an extension of stay as a TN nonimmigrant. If the alien is required to leave the United States for any reason while the petition is pending, the petitioner may request that USCIS notify the consular office where the beneficiary is required to apply for a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the United States, of the approval.

(iii) An extension of stay in TN status may be approved by USCIS for a maximum period of three years.

(iv) There is no specific limit on the total period of time an alien may be in TN status provided the alien continues to be engaged in TN business activities for a U.S. employer or entity at a professional level, and otherwise continues to properly maintain TN nonimmigrant status.

(2) Readmission at the border. Nothing in paragraph (h)(1) of this section shall preclude a citizen of Canada or Mexico who has previously been admitted to the United States in TN status, and who has not violated such status while in the United States, from applying at a DHS-designated port-of-entry, prior to the expiration date of the previous period of admission, for a new three-year period of admission. The application for a new period of admission must be supported by a new letter from the United States employer or the foreign employer, in the case of a citizen of Canada who is providing prearranged services to a United States entity, which meets the requirements of paragraph (d) of this section, together with the appropriate filing fee as noted in 8 CFR 103.7(b)(1). Citizens of Mexico must present a valid passport and a valid, unexpired TN nonimmigrant visa when applying for readmission, as outlined in paragraph (d)(1) of this section."

Although there is no doubt employers welcome USCIS' move, with 74,000 TN visas (counting initial filings and extensions) out there, it appears to me that the motivation behind this move is not to assist the employers but rather to get some relief from the administrative burden of having to process these visas. 


CHEP Joins IMAGE program

CHEP, a pallet and container pooling services company in Orlando, recently announced its “formal partnership” with U.S. Immigration and Customs Enforcement (I"CE") to follow hiring practices, train its staff, and use ICE’s Mutual Agreement between Government and Employers (“IMAGE”) to verify that its employees are lawfully authorized to work. The company signed for IMAGE last month at ICE's headquarters in Washington DC, committing the company to meeting the workforce compliance standards set by the program.

U.S. Department of Justice Announced "Federal Immigration Arrests Surpass Drug Arrests"

The U.S. Department of Justice announced today that federal immigration arrests surpass drug arrests.  The official release, which I reproduce here below, states:

"Immigration and drug arrests comprised more than half of the 140,200 federal suspects arrested and booked by the U.S. Marshals in 2005, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. Material witness (20 percent), immigration (15 percent) and weapons (11 percent) arrests increased at the fastest annual rate from 1995 to 2005. In 2005, immigration (27 percent) was the most prevalent arrest offense followed by drug (24 percent) and supervision violations (17 percent). Forty percent of all suspects arrested by the U.S. Marshals Service were arrested in 1 of 5 federal judicial districts along the U.S.-Mexico border, including Arizona, New Mexico, the Southern and Western Districts of Texas, and the Southern District of California. Nearly 1 in 4 (23 percent) of all suspects arrested in 2005 were arrested in the Southern and Western Districts of Texas.

The federal government reorganized key federal law enforcement agencies following the passage of the Homeland Security Act of 2002. The U.S. Customs Service and Secret Service transferred from the Treasury Department to the Department of Homeland Security; the Bureau of Alcohol, Tobacco, Firearms, and Explosives transferred from the Treasury Department to the Department of Justice; and the Immigration and Naturalization Service moved DOJ to DHS. In 2004 and 2005, the Department of Homeland Security (DHS) referred nearly half (45 percent) of all suspects handled by U.S. attorneys, compared to 33 percent of suspects referred by Justice agencies. Suspects referred for federal prosecution by the Treasury Department were 2 percent of all suspects referred in 2004 and 2005, down from 20 percent five years earlier. From 1995 to 2005, the likelihood of being prosecuted, convicted, and sentenced to prison increased. Sixty percent of suspects referred to U.S. attorneys were prosecuted in 2005 (from 54 percent in 1995). Ninety percent of defendants charged with a federal violation were convicted (up from 84 percent in 1995), and 79 percent of defendants convicted in 2005 were sentenced to prison (up from 67 percent in 1995). Thirteen percent of the defendants convicted in 2005 were sentenced to probation (down from 24 percent in 1995).

The average annual growth rate (3.6 percent) in suspects handled by U.S. attorneys from 1995 to 2005 was more than three times greater than the average growth in U.S. resident population (1.1 percent) over this period. Suspects referred in federal judicial districts with an average population of more than five million U.S. residents grew at a faster rate than less populated districts. Suspects handled by U.S. attorneys in districts with an average population of less one million U.S. residents were declined for further prosecution at a higher rate (36 percent) than in more populated districts (20 percent). Felony convictions in federal court (25 percent) increased at faster rate than in state court (5 percent) from 1996 to 2004. In 2004, 1 in 5 convictions of state and federal weapons felons were handled in federal courts—more than twice the percentage of state and federal weapons felons convicted in federal court in 1994.

The U.S. Court of Appeals received 14,644 filings in 2005—an increase of 44 percent from 1995. About 4 in 10 appeals filed in 2005 were for drug offenses (41 percent), followed by immigration (17 percent), weapons (16 percent) and violent (5 percent) offenses. Appeals filed by immigration offenders increased an average 25 percent per year from 1995 to 2005. At yearend 2005, 375,600 persons were under some form of federal supervision—62 percent were in secure confinement, including prison and pretrial detention. Thirty-eight percent were under federal supervision in the community, including pretrial release and post-sentencing supervision.

The report, Federal Justice Statistics, 2005 (NCJ 220383), was written by BJS statistician Mark Motivans. Following publication, the report can be found at For additional information about the Bureau of Justice Statistics’ statistical reports and programs, please visit the BJS Web site at"


U.S. Customs Border Protection's Global Entry Kiosks Now Available at LAX, Miami, Chicago, Atlanta

U.S. Customs and Border Protection ("CBP") announced on Thursday, October 2, 2008 that Global Entry kiosks are now available at four additional international U.S. airports. CBP is the unified border agency within the Department of Homeland Security charged with the management, control and protection of U.S. borders at and between the official ports of entry. CBP is also charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
CBP's release states as follows:

"Approved members returning to the U.S. use the Global Entry kiosk as an alternative to the regular passport control line. At the kiosk, Global Entry members will activate the system by inserting their passport or U.S. permanent resident card into a document reader. The kiosk will direct travelers to provide digital fingerprints and will compare that biometric data with the fingerprints on file.Global Entry travelers will be prompted to answer declaration related questions on the kiosk’s touch-screen. A transaction receipt will be issued upon completion that must be presented to CBP officers prior to leaving the inspection area. The program’s expansion to Los Angeles International, Hartsfield-Jackson Atlanta International, Chicago O’Hare International and Miami International airports was announced on August 12. The enrollment centers at these sites are expected to open later this month. Global Entry applicants will be able to complete their interview and biometric data collection at these sites. Global Entry kiosks also will be installed at additional terminals at John F. Kennedy International Airport October 17. The Global Entry pilot program began June 6 at JFK International, George Bush Intercontinental and Washington Dulles International airports. To date, approximately 3,500 members have already enrolled and over 1,100 Global Entry members have used kiosks at the three existing pilot locations. Global Entry is open to U.S. citizens or lawful permanent residents. For more information on CBP trusted traveler programs, or for an application to enroll in the Global Entry pilot program, please the Web site. ( Global Entry Program – Applications Are Available Now! )."

ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap

I am reproducing in its entirety the following article, I think you should read it:

"ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap By SUSAN CARROLL Copyright 2008 Houston Chronicle, Sept. 9, 2008, 10:52PM

With high-profile workplace immigration raids making news across the country, many employers might not seem eager to sit face-to-face with an Immigration and Customs Enforcement agent and open up their books for scrutiny. But Betsy Kippenhan, an executive with a Houston-based staffing firm, seemed downright excited about it, speaking fondly of the "ICE advocate" who will be helping the company, Talent Tree, verify its worker eligibility through an ICE program called "IMAGE."

"We wanted to make sure they were going to look at us and give us the stamp of approval, which is what they've done," said Kippenhan on Tuesday after formally signing up for ICE's self-policing program for employers. But some immigration attorneys and labor advocates warned that IMAGE could be a legal trap for employers who haven't been vigilant examining workers I-9 forms, which establish eligibility to work in the U.S. In exchange for free education and training, companies participating in IMAGE (Mutual Agreement between Government and Employers) agree to meet certain requirements, including using the federal government's Internet-based employment verification system and checking workers' Social Security numbers. Employers also must agree to an ICE audit of workers' employment paperwork and promise to self-report any violations of hiring law.

Membership growing
ICE spokeswoman Pat Reilly said the program started small in January 2007 with only nine members. On Tuesday it added 26 members and 11 associate members, a category created in June to give employers two years to get their paperwork in order before submitting to an ICE audit or producing an annual report. The membership rolls range from small businesses like the Bellaire-based construction company All American Brothers, to big names in government contracting, like General Dynamics. Smithfield Foods Inc., which employs more than 57,000 people worldwide, also is an associate member. Reilly said some employers expressed an interest in the program after "someone else in their industry was the subject of a worksite enforcement" raid. ICE has stepped up its worksite enforcement in recent months, reporting 3,900 arrests for immigration violations and more than 1,000 criminal arrests from worksite enforcement investigations in the past 10 months. According to ICE, 116 owners, managers, supervisors or human resources employees, were facing criminal charges in connection with on-the-job raids, including harboring or knowingly hiring undocumented workers.

'A poor image'
For some companies, Reilly said, the program is "brand protection, and an insurance against 'headline risk'. You don't want your brand bandied about as somebody who doesn't comply with the law because then you lose clients' confidence." Kathleen Walker, an El Paso attorney and executive committee member with the American Immigration Lawyers Association, said IMAGE "has a poor image" and has attracted few participants. "I think it's a mirage," Walker said. "Employers can put themselves into a trap signing up for IMAGE." Charles Foster, a Houston immigration attorney with Tindall & Foster, urged employers to use caution before signing up for the program, particularly if "their house is not in order." "On the surface, there is nothing wrong with it," he said. "But there are concerns that employers should be aware of. You're effectively inviting the government to review all of your employment verification forms. That could produce significant civil and criminal liability."

'Not a trap'
Foster and Walker pointed to a raid of the Swift & Co. meatpacking plants in December 2006 in Texas as an example of what can go wrong with private partnerships with ICE. Swift had voluntarily participated in the government's electronic employment verification system for more than a decade before the raids, which resulted in more than 1,200 arrests at six meatpacking plants. Reilly said E-Verify is a "free, easy-to-use tool," but is not a stand-alone solution to detecting undocumented workers. She said hiring practices at Swift plants showed a pattern of blatant illegal behavior. Reilly said IMAGE is "not a trap," pledging that ICE will work with businesses that participate in the program. "When we look at their records ... and patterns that might indicate an illegal workforce, we're not going to say, 'You have to come into compliance by tomorrow.' " Reilly said. "But what we are going to look for is if there is any illegal activity going on in their workplace, we're going to ask them to take care of that first, like stolen identities and flagrant fraudulent documents." Hector Diaz, the president of All American Brothers Company based in Bellaire, called the program "the wave of the future." He signed up as an associate member on Tuesday, and completed his first day of IMAGE training in Arlington, Va., saying the program has become an necessity for his roughly 20-employee construction company, which works exclusively on government contracts. "I think it's going to be a requirement for federal contract work," said Diaz, whose recent projects included work at Ellington Field and NASA. "You can't be working on a government contract and have an illegal alien."

Reassuring clients
Ruth McCurdy, vice president for corporate connections for Talent Tree, which employs 35,000 temporary associates and about 250 staff members nationwide, said one of the main goals is to reassure clients that workers placed with their companies by the staffing firm are eligible to work in the U.S. "There are companies out there that employ illegal aliens and put them in companies, and that puts a lot of people at risk," McCurdy said. "When you are working with a third party for your workforce, you need to know you have a partner that has people who have passed the eligibility requirements."


Brothers Plead Guilty to Enslaving Farmworkers in Florida

According to the U.S. Department of Justice "Cesar Navarrete, Geovanni Navarrete, Villhina Navarrete, Ismael Michael Navarrete and Antonio Zuniga Vargas pleaded guilty to charges relating to a scheme to enslave and Mexican and Guatemalan nationals and compel their labor as farmworkers, the Justice Department announced today. All five defendants pleaded guilty to harboring undocumented foreign nationals for private financial gain and identify theft. In addition, Cesar and Geovanni Navarrete pleaded guilty to beating, threatening, restraining and locking workers in trucks to force them to work for them as agricultural laborers. Cesar Navarrete also pleaded guilty to re-entering the U.S. after being convicted of a felony and deported, and Ismael Navarrete also pleaded guilty to document fraud. ... The defendants were accused of paying the workers minimal wages, driving them into debt, while simultaneously threatening physical harm if the workers left their employment before their debts had been repaid to the family. Previously, co-defendant Jose Navarrete entered a guilty plea for conspiracy to harbor and to harboring undocumented foreign nationals for financial gain as well as possession of false documents, identify theft and re-entry after being deported." USDOJ, Sept. 3, 2008.


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."

Immigration Sting in Florida

The Beacon News online, member of the Sun-Times news group, reported on August 27, 2008, in an article written by MATT HANLEY that "An Aurora man is one of 10 people facing federal charges in an immigration sting, federal prosecutors announced this week. Vardahraj Bandari, 42, is charged with conspiracy to commit visa fraud and unlawfully harboring aliens in violation of federal immigration laws, according to the U.S. Attorney's Office in Florida. According to federal prosecutors, six people were arrested in Escambia County, a far western Florida county. The others charged were arrested in New Jersey and Georgia, prosecutors said. Representatives from the Florida federal prosecutors office did not comment on how Bandari was tied to the scheme and did not release additional information. Nine of the ten individuals -- including Bandari -- will be making their initial appearances in federal court. The 10th individual is expected to appear in United States District Court at a later date. Bandari's family could not be reached for comment. Federal prosecutors did not release a street address for Bandari.The case is being prosecuted by the United States Attorney's Office in the Northern District of Florida. facing federal charges in Fla. immigration sting."

ICE Apprehends 595 Undocumented Workers At An Electrical Equipment Manufacturing Plant In Laurel, Mississippi

On Monday, August 25, 2008, U.S. Immigration and Customs Enforcement Agents (“ICE”) raided Howard Industries Inc. of Laurel, Mississippi, an electrical equipment company that produces electrical transformers, medical supplies, and others, apprehending 595 suspected undocumented workers. Howard Industries, founded in the 1960s, received in 2002 a $31.5 million, taxpayer-backed incentive plan aimed at helping to expand its operations. On Monday, Barbara Gonzalez, ICE’s spokeswoman for this raid, stated this raid was "...a targeted enforcement operation that is part of an ongoing ICE investigation that has revealed that illegal aliens are employed at Howard Industries." Barbara Gonzalez also added that ICE had acted on a tip provided by a union worker. The U.S. Department of Justice and ICE issued a joint press release annoucing that “…special agents executed a federal criminal search warrant yesterday at Howard Industries, Inc., an electric transformer manufacturing facility, for evidence relating to aggravated identity theft, fraudulent use of Social Security numbers and other crimes, as well as a civil search warrant for individuals illegally in the United States…as a result of yesterday’s enforcement action, approximately 595 illegal aliens were arrested by ICE special agents. Of those, approximately 106 were identified as being eligible for an alternative to detention based on humanitarian reasons. These individuals will still be required to appear before a federal immigration judge who will ultimately determine whether or not they will be deported. Eight criminal cases have been accepted for prosecution by the U.S. Attorney’s Office for the Southern District of Mississippi. The criminal cases are focused on charges of aggravated identity theft. The other cases are being handled via administrative law procedures at the Department of Homeland Security. “Yesterday’s enforcement action is part of ICE’s ongoing nationwide effort to shut down the employment magnet fueling illegal immigration,” said Holt. “We are committed to strengthening the integrity of our nation’s immigration system. Harris noted that the eight cases being criminally prosecuted are for separate identity theft charges. “Identity theft is a growing problem in the United States, and the Department of Justice has prioritized bringing perpetrators of these crimes to justice and protecting the interests of innocent victims. All of those arrested were interviewed, fingerprinted and photographed by ICE agents and processed for removal from the United States. Approximately 475 were transported to an ICE facility in Jena, Louisiana where they will await the outcome of their case. The eight individuals facing criminal charges are in the custody of the U.S. Marshal’s Service.” On August 27, 2008 the Hattiesburg American reported that "when federal agents raided the Howard Industries plant early Monday, they sealed off the exits and made it impossible for any of the workers to escape, some of the detainees released said Tuesday. ...when the Immigration and Customs Enforcement agents scrambled into the plant, they ordered workers to form two lines - one for Hispanics and one for non-Hispanics."According to AP this "the largest single-workplace immigration raid in U.S. history has caused panic among Hispanic families in this small southern Mississippi town, where federal agents rounded up nearly 600 plant workers suspected of being in the country illegally."

Missouri Latest State To Enact E-Verify Requirement

On July 7, 2008, Missouri Governor Matt Blunt signed a bill, effective January 1, 2009, requiring employers contracting or receiving grants from the state in excess of $5,000  to use E-Verify.  Missouri joins a growing number of states that, in the absence of a federal comprehensive immigration reform act, have chosen to regulate the employment of illegal workers. The Missouri bill shares similarities to other bills enacted in states such as: Colorado, Georgia, Minnesota, Oklahoma, Rhode Island, and Utah. However, this bill goes further by requiring employers with state-administered tax credits, tax abatement, or state-administered loans to also use E-verify. The bill also gives Missouri's Attorney General the authority to enforce the act.  Missouri's Attorney General may now demand: 1) employers to provide identification information on their employees; 2) employers to provide identification documents within 15 business days of receiving such a request.  Failing to abide by the request could result in the suspension of a company's applicable local licenses, permits, and exemptions until the documents are supplied, 3) employers to classify its employees correctly (i.e. knowingly classifying an employee as an independent contractor when he/she is not carries fines ranging from $50 to $50,000.)  A contractor will not be liable for the unauthorized employment of an illegal alien if a subcontractor employing the individual provides a sworn affidavit that the employee is authorized to work in the US. Missouri's law does not substitute the federal requirement to complete Form I-9 Employment Eligibility Verification.

AILA-USCIS Update on Two-Year EAD Processing

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

ICE Executes Search Warrant Targeting California Farm Labor Contractor

On June 5, 2008, U.S. Immigration and Customs Enforcement (“ICE”) agents executed a federal search warrant as part of an ongoing investigation targeting an Imperial Valley-area farm labor contractor, arresting two of the company’s foremen on criminal charges and another 32 employees on administrative immigration violations. The warrant was executed at the business office of the locally-owned Boss 4 Packing company, a packing business in Heber, California that provides contract workers to the farming industry in the Imperial Valley. The two arrested company foremen were charged with federal criminal charges for misusing Social Security numbers to employ illegal alien workers. The 32 illegal aliens employed by Boss 4 Packing include a group of seven women and 25 men from Mexico and Honduras. So far, 18 have been repatriated to Mexico and 12 are being held as material witnesses in the ongoing Investigation. One underage worker has been turned over to relatives. The search warrant remains under seal and the investigation is ongoing.

This could very well have happened in Florida. So far in fiscal year 2008, ICE has made more than 3,700 arrests in connection with worksite enforcement investigations, including 850 involving criminal violations. In fiscal year 2007, ICE made more than 4,900 arrests in connection with worksite enforcement investigations, including 863 involving criminal violations. That represents a 45-fold increase in criminal worksite arrests compared to fiscal year 2001. In addition, ICE obtained more than $31 million in criminal fines, restitutions and civil judgments in fiscal year 2007 as a result of worksite related enforcement actions.

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.

USDOL to Audit All PERM Labor Certifications Filed by Fragomen

On June 2, 2008, the USDOL announced that all PERM Labor Certification Applications (“LC”) submitted by the law firm of Fragomen, Del Rey, Bernsen & Loewy (“FDBL”), the largest immigration firm in the nation, will be audited.

USDOL’s announcement states: “The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.”

I do not know what FDBL did or did not do, but I certainly take objection at USDOL’s decision, as a colleague stated, for “trying” FDBL in a press release. Such announcements should be reserved only for cases in which the USDOL has found the existence of wrongdoing.

In its announcement the USDOL also states that: “There is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program.” I could not disagree more or in stronger terms. It is wrong for an attorney to advise the employer not to hire a qualified U.S. worker, but USDOL regulations are clear as far as an employer’s right to receive legal counsel through the much confusing and convoluted PERM process. 20 CFR § 656.10(b)(1) states clearly that attorneys may represent employers throughout the process. As long as the attorney does not interview or consider the U.S. worker for the position, the attorney has not violated any rule. Through this announcement USDOL also appears wanting to restrict the open communication that must exist between an attorney and his client for purposes of legal representation.

But there is another point I wish to make. Many employers in their quest for the “easiness” of a mill application process and low attorney fees receive legal services which may cover the minimum application requirements, but that do not offer protection. The days of “easy” compliance are long gone; today’s immigration law is complex, always changing and confusing. The US government has become more active in enforcing immigration laws against employers. In response to 9/11, the government has increased security measures and electronic initiatives to address national security concerns. The increase in the government's immigration policies is manifesting itself in a resurgence of government audits and criminal investigations of US employers. Given these enforcement times we live in, employers would be better served by researching and hiring legal services that offer them safety.

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).