vi·sa /ˈvizə/ noun, 1. an endorsement made by an authorized representative of one country permitting the passport holder entry into or transit through the country making the endorsement. vi·sion /ˈvɪʒən/ –noun 1. the act or power of anticipating that which will or may come to be."
Executive Order and Federal Procurement Law Challenged
Athough the final rule requiring federal contractors and subcontractors to enroll in and use E-Verify for new (and some existing) employees was due to take effect January 15, 2008, it (73 Fed. Reg. 67,651 (Nov. 14, 2008) has been suspended until February 20, 2009. The delay comes as the result of a challenge filed by the American Council on International Personnel (ACIP), the US Chamber of Commerce, the Society for Human Resource Managment, Associated Builders and Contractors, and HR Policy Association (Chamber of Commerce of the United States of America, et al. v. Michael Chertoff, et al., Civil Action No. AW-08-3444 (D.Md.)).
The challenge was based on the burden the rule places on employers and the argument that Congress had specifically prohibited mandating E-Verify in the Illegal Immigration Reform and Immigrant REsponsibility Act (IIRAIRA), including -reverification of current employees, among other claims.
An announcement in the Federal Register should be issued shortly (i.e. in the next week), and both parties will file briefs in favor or opposing the rule.
1/14/08 UPDATE: The announcement was published in the Federal Register today. “The applicablity date of FAC 2005-29 is delayed until February 20, 2009″
April 2006 - Undocumented workers and supporters protest a bill which would criminalize undocumented workers
USCIS announced today in a press release on the headlines of the USCIS.gov website that “The Bratton Corp., a construction products supplier from Kansas City, Mo., employing about 200 people in Kansas City and Pasadena, Calif., is the 100,000th employer to participate in E-Verify.”
Congrats Bratton! It’s interesting to see the marketing tools that the government is employing to hype up E-Verify. Although I write about and research the shortcomings and dangers of an electronic verification system which could negatively affect human resources departments and employees on a grand scale, I do think that the program has its virtues. If employers have a reliable, quick, and easy way to verify the identity and authorization of their employees, and are held accountable for staffing unauthorized workers, they are more likely to comply. That said, I am frusterated that DHS has invested so much in designing this well-structured verification program without devising an equally well-structured program to address the heart of the problem: creating pathways for the 12 million shadow immmigrants to integrate legally into our workforce.
Even if every employer in the US is enrolled in E-Verify, there will always be an underground workforce of unauthorized workers unless Congress addresses them directly.
Tags: E-Verify
Avoiding Liablity for Employing Unauthorized Workers
I was reading about the August 15, 2007 DHS Final Rule which was published about Social Security No-Match letters giving employers guidance on their obligations to respond in order to benefit from the “safe harbor” provisions limiting (or eliminating) an employer’s liablity. According to the Rule, once an employer receives a Social Security No-Match letter stating that a discrepancy exists between the employee’s name and social security number provided on a W-2 form and the information that the SSA has in its database, the DHS argued that a “reasonable person” should infer a workers unauthorized status, and employer can be held liable for employing unauthorized workers. However, if the employer follows the procedures outlined in the Rule, the employer receives ”Safe Harbor” which relieves the employer from that liablity. Once the employer recieves the letter, it must
a) check its records within 5 days to determine whether it was the result of a clerical error, and if so it must correct the records, notify the agencies of the error, and verify that the corrected information matches the Agencies records. Employers must resolve the discrepancy within 30 days of receipt of the letter.
b) if the employer cannot resolve the discrepancy, it must notify the employee, and confirm that the employer’s information is correct. If the information is incorrect, the employer must contact the Agency and correct the inforamtion. If there is no discrepancy and the information submitted by the employer, the employer must direct the employee to contact the Agency to correct the discrepancy. 30 days is also the reasonable timefram to remedy the discrepancy.
If the No-match issue isn’t resolved within 90 days of receipt, the employer may complete a new Form I-9 (with certain restrictions). If the employer determines that the employee is unauthorized, DHS will not infer constructive knowledge by the employer because it followed the designated procedures in response to the No-Match letter, and has “safe harbor.”
After the Final Rule was published on August 15, 2007, a lawsuit was filed by the US Chamber of Commerce, the National Roofing Contractors Association, AFLCIO, the ACLU, and other business organizations challenging some aspects of the Rule because inaccuracies in the SSA database could result in the termination of lawful workers and impact small businesses. A temporary restraining order was issued based on the irreparable harm that would result if the Rule were to go into effect, and the liklihood of the Plaintiffs’ success in the suit.
Here’s the part I thought was really cool about this lawsuit against DHS:
On November 23, 2007 DHS requested the court to delay proceedings so that it could reissue a revised rule to correct the disputed Rule. The revised rule (issued March 21, 2008) clarified the timerframe that an employer was required to notify the affected worker to five days after conducting its own internal records review. On October 28, 2008 the DHS issued a Supplemental final no match Rule which eliminated the five buisness day notification requirement. I need to find out what happened on November 21, 2008.
I posted this to explain the content of the disputed No-Match rule, understand why it is so controversial, and express my fascination with the idea that we can sue government agencies when they issue regulations that harm people or businesses (and that the agencies actually have to listen to the Courts!!). Pretty cool!
Tags: democracy, DHS, employment compliance, No-Match, rulemaking
LPRs Prepare your Fingers!
On Thursday, December 18, 2008, Department of Homeland Security issued a final rule that will subject US VISIT requirements to nearly all immigrants, including Lawful Permanent Residents. The rule was introduced on August 31, 2004 when DHS issued an interim rule, and was finalized after receiving comments to the interim rule. The Final Rule takes effect January 18, 2008.
Currently, all “international visitors” including those travelling on a non-immigrant visa or visa waiver travelers, are required to submit biometrics at the visa issuing post (consulate) or port of entry. Biometrics are fingerscans, photographs, or other biometric identifiers taken at the port of entry. After January 18, 2009, LPR’s and nearly all other aliens will also be subject to the US VISIT requirements.
Exceptions:
- Canadian citizens seeking short-term admission for business or pleasure under B visas
- Individuals traveling on A and G visas
The following individuals were exempt in the 2004 Rule and are still exempt:
- Visitors admitted on an A-1, A-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visa
- Children under the age of 14
- Persons over the age of 79
- Classes of visitors the Secretary of State and the Secretary of Homeland Security jointly determine shall be exempt
- An individual visitor the Secretary of State and the Secretary of Homeland Security or the Director of Central Intelligence Agency jointly determine shall be exempt
- Taiwan officials who hold E-1 visas and members of their immediate families who hold E-1 visas.
Helpful Links:
The Final Rule published in the Federal Register
DHS Announcement of Final Rule
AILA Response Regarding Concerns about Final Rule
Tags: Final Ruling
World War II Veteran
Immigrants have always played a significant role in the US Military. Green Card holders enter the military by the thousands every year, and are targeted during recruitment campaigns when enrollment by US citizens is low. Japanese Americans fought for the US during World War II, and Arab-Americans fought for the US in the Gulf War, Afghanistan, and Iraq.
With great thanks to every soldier, citizen and immigrant, who risked their life and limb for the US. Regardless of its religious source, this quote is universal and one which I’ve always held close to my heart:
לא ישא גוי אל גוי חרבלא ילמדו עוד מלחמה-Lo yisa goy el goy cherev. Lo yil m’du od milchama.
Nation shall not lift up sword against nation Nor ever again shall they train for war. Isaiah 2:4
Tags: war
Check it out… I was quoted about the problems with E-Verify in Golf Course Management Magazine!
http://www.gcsaa.org/GCM/2008/nov/feature5.asp
Some of Julie's Best Friends are Deportees!!!
I saw Julie Myers speak at an AILA conference in Orlando. I remember her urging immigration lawyers to join the “Force,” and explaining that there was a need for skilled immigration lawyers in ICE.
I wrote her a letter telling her I was ready, willing and able to serve my country as an ICE attorney. After my letter to Ms. Myers, I actually received a personalized rejection letter via email from a DHS HR rep.
This video clip describes ICE’s possible role in releasing info about the immigration status of Obama’s aunt. It also talks about Julie’s role. (Video Clip: see 1:13)
Federal Law Officials Leak Obama\’s Aunt\’s Immigration Status to Press
Tags: DHS, ICE
My Mom is right. Obama is like Moses. I hope this change in leadership brings a new era of unity, justice acceptance, compassion, and true commitment to peace.
And I am beyond grateful to have hope.
SENATOR MCCAIN: its not just a significant election for african americans. Its an unbelievably significant moment for every american. Barack obama is so much more than the first black man to win a presidential election.
But yes, now is the time for America to unite under Barack Obama’s leadership. This was the first decent speech that I’ve heard from McCain during the entire campaign.
Obama 207, McCain 135.
I haven’t been able to keep up with my thoughts, never mind keep up with my posting. I am so excited, nervous, and hopeful about this election. I wanted to document what I am thinking right now, even though it has to do with much more than immigration (which is the primary focus of this blog), because I know that the world will be a different place in a few hours and I simply cannot ignore it.
I am amazed at the hope that Obama has given to his supporters. I was a Hillary supporter, but I don’t think she could have inspired people the way Obama has. And although at first I thought she would be a better leader, I believe that if he wins, Obama is poised to unite our country in a way that transcends color, gender, wealth, or education. He is undeniably inspiring, and I hope and pray that he has the opportunity to inject our country with democratic values, and reestablish Americas position in the world as the preeminent destination for opportunity for immigrants and citizens alike.
And thank G-d McCain picked Palin. I think that added a lot of strength to Obama’s campaign.
Since I started paying attention, I’ve seen the twin towers fall, Afghanistan and Iraq invaded, Louisiana ignored after catastrophic Katrina, and the financial markets fall apart. I’ve never seen anything like this, but its about time!