Category Archives: I-9 Workforce compliance

Obama Signs Homeland Security Spending Bill; Four Immigration Programs Extended through 2012

Yesterday, President Obama signed into law the Fiscal Year 2010 DHS Appropriations bill (P.L.111-83).

The law extends the non-minister religious worker (section 568), the “Conrad 30″ for J-1 visas (section 568), the EB-5 pilot program for regional center investments (section 548), and the E-Verify (section 547) programs through September 30, 2012.

The bill was previously approved by the House of Representatives on 10/15/09 by a 307-114 roll call vote, and by the Senate on 10/20/09 by a 79-19 vote.

For Those Seeking OPT Extension in STEM-Occupations, Good Online Resource Available.

Not too long ago, USCIS made some changes regarding the Optional Practical Training (OPT) for academic students on F-1 status, who are in certain classified fields known as “STEM” (essentially, Science, Technology, Engineering and Mathematics).

To read more about STEM and its occupation classifications, please refer to my previous post on this issue.

To qualify for the OPT STEM extension, F-1 students need to conduct their OPT with U.S. employers using E-Verify. Unfortunately, as of date of this writing, neither USCIS nor ICE provide a searcheable database for this, and often the foreign student must resort to other means of finding such employers.

There is some help available to students seeking out qualifying employers. “NumbersUSA” has a searchable database of about 67,000 E-Verify employers, conveniently searchable by location and business-/occupation-type. This database is located at:
http://www.smartbusinesspractices.com/pilot/

An Update on ICE-Enforcement and Immigration Reform

Various sources in the immigration legal communicty suspect that under Obama’s administration, significant changes in worksite enforcement actions are coming. However, it appears that traditional procedures of ICE regarding unauthorized employees (those not legally authorized to hold employment in the United States) are likely to be significantly changed.

Instead of being put into detention and removal proceedings, as has been somewhat of a norm, some speculate that the undocumented worker will simply be released after questioning, while U.S. lawmakers grapple with the task of dealing with the nation’s large undocumented workforce, estimated to be in the 10′s of millions.

This new “catch-and-release” policy is aimed at reducing severe disruptions to families ordinarily caused by  ICE raids.

Historically, U.S. businesses have been divided over Immigration Reform. It is not yet clear what stance the incoming Congress will likely take on guest worker programs vis-a-vis legalization efforts.

ICE and SEVIS publish new list of “STEM” occupations

ICE and SEVIS, who oversee the regulation and monitoring of foreign students and trainees in the United States, have recently published updates to the list of so-called “STEM” occupations.

The updated list of Classifications have been designated by ICE as science, technology, engineering, or math (STEM) degrees for the purpose of approving a 17-month STEM extension of optional practical training (OPT), allowing for a total of 29 months of post-graduation employment and training.

In order for F-1 students to qualify for this 17-month extension to the OPT, the code for the student’s degree program must be on this list. Other requirements are found in the regulatory language.

Please note that in order to qualify for this special STEM-extension on your OPT, your Employer must participate in the e-Verify I-9 compliance program.

I-9′s now being requested during Adjustment Interviews? Really?

Some USCIS adjudication officers at local District Offices are apparently beginning to request copies of Forms I-9 from applicants who are applying for their Green Cards, via the process known as “adjustment of status” (from non-immigrant to permanent resident).

The instruction letters sent out by the USCIS (to the clients whose interview appointments at the local offices are being scheduled), are still silent on this new request.

Be prepared and provide copies of any previous (at least the most recent) I-9 forms to confirm that no prior claim of U.S. citizenship or of LPR status has previously been made. Discuss this with your lawyer, well in advance of the actual interview, preferrably early on in the process.

If a social security number was used and disclosed on the I-9, you should expect questions as to the origin and legitimacy of the number.

Regional Center Investment Programs Receive Reprieve… for now.

Just last month, when due to ‘sunset’, President Bush signed a Bill Extending EB-5 Regional Center Pilot Program and Basic Pilot E-verify Program, making the extensions of each program law of the land.

The FY2009 Continuing Resolution entitled the “Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009″ (H.R. 2638), was narrowly extended, giving a “stay of execution” to these two programs, which otherwise, would have expired come October 1.

The bill will extend funding for all government operations through March 6, 2009. The bill also includes an extension of the basic pilot/E-verify program (section 143) and an extension of the EB-5 regional center pilot program (section 144).

Both extensions would only last through the term of the continuing resolution.

U.S. Conference of Mayors call on ICE to make better judgments

At its annual meeting in June, the U.S. Conference of Mayors officially adopted a resolution recognizing the important economic and cultural contributions immigrants have made to this country.

The resolution also called on ICE to exercise better and more reasonable judgment when engaging in worksite enforcement activities.

Read the adopted resolutions here. (offsite)

DHS Secretary Chertoff addresses Worksite Enforcement in new DHS Blog

DHS Secretary Chertoff addresses Worksite Enforcement in a new DHS Blog. Read what Secretary Chertoff says regarding the increased efforts by DHS and what to expect.

Myth vs. Fact: Worksite Enforcement
Opponents of immigration enforcement continue to propagate mythical objections to the Department’s enforcement efforts. Some have claimed we are unfairly targeting low-level employees and not the employers who hire them. Others have misstated the facts about our E-Verify system, claiming it is riddled with errors and harms legal workers at the expense of identifying illegal ones.

For the benefit of journal readers, I’d like to take a few minutes to separate these myths from the facts.

1) Has the Department stepped up its worksite enforcement efforts?

Yes. As you can see in the table below, arrests in worksite cases have jumped from a total of 850 in 2004 to 4,940 last year, including 863 arrests based on criminal charges. We have already exceeded the number of criminal arrests this year and expect that figure to continue to rise.

Fiscal Year

Worksite
Criminal Arrests

Worksite
Administrative Arrests

2004

165 685

2005

176 1,116

2006

716 3,667

2007

863 4,077

2008
(as of May 31)

875 3,000
Source: U.S. Immigration and Customs Enforcement

2) Is it true that U.S. Immigration and Customs Enforcement (ICE) is only arresting low-level employees and not managers and supervisors?

No. Of the 863 criminal arrests in worksite cases last year, 92 were in the company’s supervisory chain. Already this year, ICE has arrested 80 individuals in the supervisory chain. This follows the arrests of 389 illegal aliens on administrative immigration violations, the most ever arrested in a single-site worksite enforcement operation. Additionally, 302 of those arrested have been charged with criminal offenses, including identity theft, false use of a Social Security number, illegal re-entry into the United States, and other crimes.

Of course, when comparing employer to employee arrests, it’s important to keep in mind that in most companies there will be a larger number of employees than employers and top-level managers. Moreover, cases against supervisors and employers are more complex, and often depend on proving knowledge and intent. Therefore, it often takes time to build a criminal case against an employer, but the charges and penalties will likely be more serious as a result.

3) Are these worksite enforcement efforts random or do they unfairly target well-established employers, as some have suggested?

No. Our efforts focus on three priority areas. We target employers who have built their business model on hiring an illegal workforce. We also focus on disrupting the infrastructure that supports illegal immigration, which includes aggressively targeting those who engage in identity theft, document fraud and/or human smuggling. And we want to ensure that our nation’s critical infrastructure sites, like our airports, seaports, military bases and nuclear facilities are staffed with individuals authorized to work in the country. The vast majority of ICE’s worksite enforcement efforts fall into at least one of these categories.

4) Does ICE conduct its worksite operations in cooperation with state and local authorities?

Yes. When ICE conducts an enforcement action, it coordinates with state and local law enforcement and those responsible for public safety in a manner that will not compromise the operation. ICE goes to great lengths to identify and address any humanitarian concerns of the individuals it encounters. ICE’s worksite enforcement operations are the result of long and careful criminal investigations, not random targeting or haphazard planning.

5) Is the Department’s E-Verify program riddled with errors and does it hurt legal workers at the expense of identifying illegal workers?

No. E-Verify is a proven tool currently used by more than 73,000 employers nationwide, with another 1,000 employers enrolling every week. I’d venture to say that if the system didn’t work or was riddled with errors, very few employers would want to use it.

Under E-Verify, almost everyone who is authorized to work in the United States is immediately verified by the system. Only about 0.5 percent of those queried who are ultimately confirmed as legal workers receive what is called a “tentative non-confirmation” and need to correct their records.

An employee who receives a tentative non-confirmation has a right to contest it and update his or her information while he or she continues working. E-Verify does not require these workers to be immediately fired.

Of course, many non-confirmations relate to employees who are not legally authorized to work in our country – estimated to be around 5 percent of all workers sent through the system. But those who employ illegal workers have no grounds to complain when the system uncovers that illegality.

6) Can worksite enforcement alone solve our nation’s immigration problems?

An enforcement-only approach will not fix this problem. We must find a way to meet our nation’s temporary workforce needs in a legal manner while also securing the border and enforcing the interior. Ultimately, this will require Congress to act on comprehensive reform. Nevertheless, our Department will not turn a blind eye toward illegality. We will continue to meet our obligations to the American people under the law, which includes enforcing the rules at worksites.

( by Michael Chertoff)

I-9 Compliance, necessary evil or undue burden ? (both?)

As part of the ongoing frustrations felt by the U.S. public and immigrants alike, American businesses are feeling the pressures of the Fed, who is taking active steps to beef up worksite enforcement and to curb illegal employment, all with some major immigration reform looming on the horizon, in the wake of the ongoing presidential election process.

Virtually all sectors of the U.S. economy in some form feel the effects of having foreign workers on their payroll, whether legal or illegal. While in the past, many employers willfully took on immigrant workers, even when the proper documentation could not be provided, under the ever-watchful eye of the Fed, and a new set of enforcement tools, including stiff fines and the threat of criminal indictments, employers who may have turned a blind eye in the past, are now beginning to think twice about their hiring (and retention) practices.

The problem is that the Fed is now expecting would-be U.S. employers to do their detective work for them. The Fed is hanging the threat of punishment over employers, essentially requiring Human Resource managers, — if the U.S. company even has one, — to now become part-time foreign document examiners, to ascertain the validity of documents presented to them by a new hire.

Adding insult to injury, the Fed is now following up potential or actual violations of the so-called I-9 regulations with a view of “you should have known”, meaning the employer was presumed to have known that the worker was not authorized to work.

Prior to the Fed’s drive to significantlystep up I-9 enforcement, itsfines were symbolic slaps on the wrist. Now, the fines have increased to such a level, that a small “Mom-and-Pop” business could potentially be put out of business, certainly in the case of repeated violations.

The criminal prosecution aspect is fairly new. While these prosecutions have their proper use and purpose, particularly in a “sweat-shop” -like situation, as things usually go, when enforcement increases, potentially, it will be the little guy who may feel the strong arm of the law the most. While these measures are justified by the Fed as being an effective deterrent to employers and workers alike, many experts in the immigration law feel that these recent measures are over aggressive.

Truth of the matter is that most employers don’t like finding out that they were given phony proof of legal status, or permission to work in the U.S. Nobody likes being lied to. But the hard truth for each employer is, that he or she has to weigh their need, or their business’ need, for this foreign worker. Can their business continue without that worker? What about a business whose entire workforce comprises of foreign workers, whose work status is not verifiable?

Contrary to a wide-spread perception shared by many Americans, foreign workers will often take jobs which employers cannot fill by hiring domestic workers.These industries are easy to pinpoint, when you think about it: landscaping businesses, construction companies, restaurants, hotels and resorts, and farming.

Small business owners essentially are caught in a lose-lose situation.Their business depends heavily on foreign workers, and their I-9 compliance efforts are handled poorly and their level of documentation management is often poor and incomplete. Add to this, our anti-discrimination laws. Sounds like a catch-22 to you? … It should.

Are your I-9 records up to par?

If you have any foreign workers in your business, you must comply with I-9 verification procedures. You should consider a voluntary records audit to ensure compliance. Ask me how. … An audit by the Labor Dept. or ICE is not a good time to find out flaws in your employees’ records.