The U.S. Department of Homeland Security released an interim final rule extending the period of Optional Practical Training from 12 to 29 months for qualified F-1 non-immigrant students with degrees in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.
E-Verify Immigration Program Draws Criticism
California is one of the few states that have implemented the E-Verify program, which verifies the legal status of job candidates for 52,000 participating employers in a handful of states could expand rapidly into the rest of the nation experts say.
Day-labor numbers dropping in Orange
New ordinances cracking down on businesses allowing day workers to congregate add to declining numbers in Orange County, CA.
Immigration deal reached
SC legislative negotiators will allow private employers to use a variety of methods to verify the legal status of their employees, including the federal I-9 Employment Eligibility Verification Form and E-Verify.
Sanford reiterates call for strong immigration bill
Currently, the SC House version of the bill does not contain any verification requirements for private employers. The Senate version contains a verification requirement for private employers, but permits it to be satisfied by using the failed Federal I-9 form verification process. The I-9 process is an ineffective system already employed by the federal government in which fraudulent documents can be used to satisfy the verification requirements, and federal law prohibits employers or states from checking the validity of the documents.
A step in the right direction
Senate Bill 2988 requires all employers in Mississippi to confirm the legal status of all new employees by using the E-Verify Program, the federal online employment verification system. The bill makes it a discriminatory practice to dismiss a U.S. citizen or permanent resident alien while retaining an employee who is illegally in our country, and makes it a felony for an illegal alien to accept or perform employment.
More employers verifying immigration status
Employers have screened about 2.5 million new hires in the first six months of fiscal 2008 through E-Verify, the Department of Homeland Security's database that determines which employees can legally work in the U.S.
59 Arrested On Illegal Working Charges At Lansdowne
The investigation started in early July 2007 after a routine inspection of all I-9 employment eligibility verification forms at the resort. Through analysis of the I-9 forms, ICE agents identified information that led them to suspect that many of the employees were using fraudulent documents or had stolen someone else's identity to secure jobs at the resort.
Monday, April 21, 2008
Saturday, April 5, 2008
Recent news on immigration legislation
Feds Take Hard Line on Immigrant Hiring
On March 26, the Department of Homeland Security reissued a rule that would force companies to either resolve within 90 days discrepancies between a worker’s name and Social Security number or fire the employee. It would effectively make so-called “no-match” letters evidence of the illegal hiring.
Office of Special Counsel's Antidiscrimination Guidance for Employers Following the DHS Safe-Harbor Procedures
The Department of Homeland Security’s Safe-Harbor Procedures for Employers Who Receive a No-Match Letter offers employers who receive no-match letters from the Social Security Administration a safe-harbor in a related immigration enforcement action if those employers follow the series of steps set forth in the no-match rule to ensure that the information provided by affected employees to confirm their work eligibility is genuine.
Illegal Immigration Is A Facility Management Issue
With reform a hot political topic, changes could significantly redefine the workforce.
Kansas Immigration Bills
With the House and Senate passing different immigration bills, the focus moves to what their negotiators will draft as a final version, and some say they'll be combining measures weakened to satisfy the business community.
Measure provides incentives for firms to use E-Verify
Arizona companies that don't check the legal status of new workers would lose access to government contracts and special economic incentives under the terms of proposed legislation approved Tuesday by the Senate Appropriations Committee.
Kansas Immigration bill passes House
Among other things, the measure increases penalties for using false documents to gain illegal employment and creates the crime of helping an illegal immigrant to vote. It also creates criminal penalties for businesses that illegally treat workers as independent subcontractors.
ID checks may be forced
Businesses across South Carolina would have to check new hires through a federal work-eligibility database under some versions of the state's planned crackdown on illegal immigrants.
Department of Homeland Security’s No-Match Program Shifts Burden ...
It’s estimated that 800,000 employers could receive notices; representing a fundamental shift in how businesses are forced to handle the issue of illegal workers. The No-Match program is an enormous step in increased workplace raids looking for undocumented workers.
Immigration reform turns into a minefield for lawmakers
Immigrants break the law if they are here illegally. Businesses that exploit their cheap labor break the law. The law should be enforced.
Five IFCO managers indicted on federal charges
A grand jury has returned a six-count felony indictment against five current managers of the Pallet Management Division of IFCO Systems North America (IFCO). The indictment charges the managers with engaging in a conspiracy to harbor illegal aliens, to encourage and induce, and to transport illegal aliens.
On March 26, the Department of Homeland Security reissued a rule that would force companies to either resolve within 90 days discrepancies between a worker’s name and Social Security number or fire the employee. It would effectively make so-called “no-match” letters evidence of the illegal hiring.
Office of Special Counsel's Antidiscrimination Guidance for Employers Following the DHS Safe-Harbor Procedures
The Department of Homeland Security’s Safe-Harbor Procedures for Employers Who Receive a No-Match Letter offers employers who receive no-match letters from the Social Security Administration a safe-harbor in a related immigration enforcement action if those employers follow the series of steps set forth in the no-match rule to ensure that the information provided by affected employees to confirm their work eligibility is genuine.
Illegal Immigration Is A Facility Management Issue
With reform a hot political topic, changes could significantly redefine the workforce.
Kansas Immigration Bills
With the House and Senate passing different immigration bills, the focus moves to what their negotiators will draft as a final version, and some say they'll be combining measures weakened to satisfy the business community.
Measure provides incentives for firms to use E-Verify
Arizona companies that don't check the legal status of new workers would lose access to government contracts and special economic incentives under the terms of proposed legislation approved Tuesday by the Senate Appropriations Committee.
Kansas Immigration bill passes House
Among other things, the measure increases penalties for using false documents to gain illegal employment and creates the crime of helping an illegal immigrant to vote. It also creates criminal penalties for businesses that illegally treat workers as independent subcontractors.
ID checks may be forced
Businesses across South Carolina would have to check new hires through a federal work-eligibility database under some versions of the state's planned crackdown on illegal immigrants.
Department of Homeland Security’s No-Match Program Shifts Burden ...
It’s estimated that 800,000 employers could receive notices; representing a fundamental shift in how businesses are forced to handle the issue of illegal workers. The No-Match program is an enormous step in increased workplace raids looking for undocumented workers.
Immigration reform turns into a minefield for lawmakers
Immigrants break the law if they are here illegally. Businesses that exploit their cheap labor break the law. The law should be enforced.
Five IFCO managers indicted on federal charges
A grand jury has returned a six-count felony indictment against five current managers of the Pallet Management Division of IFCO Systems North America (IFCO). The indictment charges the managers with engaging in a conspiracy to harbor illegal aliens, to encourage and induce, and to transport illegal aliens.
Tuesday, April 1, 2008
DHS Continues to Push SSA No-Match Letters in Worksite Enforcement Strategy
Continuing its effort to use Social Security Administration “No Match” letters to employers for immigration enforcement purposes, the Department of Homeland Security has filed a “supplemental” proposed rule seeking to cure deficiencies of its “ Safe Harbor ” rule.
The Department of Homeland Security (DHS) knows that many employers continue to employ significant numbers of unauthorized foreign workers. Since 1986 all U.S. employers have been required to complete Form I-9 and review documents supplied by each newly hired worker to verify the worker’s identity and employment authorization. False documents using fabricated or stolen identities have evaded the effectiveness of the I-9 process.
DHS is pursuing many parallel paths to prevent the employment of unauthorized workers, including:
• Increased audits by U.S. Immigration and Customs Enforcement (ICE) of employers’ I-9 forms for existing
• Increased ICE worksite raids followed by deportation of unauthorized workers and prosecution of the employers and individual managers ICE alleges to have known the workers were illegal
• Promotion and expansion of DHS’ technically voluntary and pilot “E-Verify” electronic employment verification system through cooperation with states that are increasingly enacting laws threatening employers with loss of government contracts and state business licenses and through an imminent federal regulation that will require all federal government contractors to use E-Verify
• Clarification to employers that ignoring Social Security Administration (SSA) “no-match letters” will constitute “constructive knowledge” that affected workers are not unauthorized to work in the U.S.
The DHS proposed rule, to be published in the Federal Register during the week of March 24, 2008, relates to the last measure. DHS had planned to use SSA no-match letters in its worksite enforcement strategy, both by inserting a new ICE letter with each SSA no-match letter and by updating its I-9 regulations to clarify that an SSA no-match letter can constitute “constructive knowledge” unless the employer receiving it follows certain “safe harbor” procedures. DHS’ “safe harbor” regulation is currently held up by a court injunction in a lawsuit brought by combined employer and union interests, AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal. Aug. 29, 2007). DHS is trying to cure the legal defects pointed out by the court even while it appeals the injunction.
One of the most important defects cited by the court was the failure of the past regulation to conduct an analysis of its impact on small businesses as required by the Regulatory Flexibility Act. In the supplemental proposed rule (the “Supplement”), DHS purports to conduct that analysis, but it only assesses the cost of complying with the “safe harbor” procedures, such as “human resources personnel, certain training costs, legal services, and lost productivity.” DHS estimates the costs at between $3,000 and $34,000 per employer, depending on the number of workers employed. DHS refuses to recognize the economic costs to employers and the economy as a whole that will result from the loss of the services of unauthorized employees who end up being terminated as a result of no-match letters. DHS states that such economic costs are attributable to the twenty-year old law prohibiting employment of unauthorized aliens, “not to this rule.” The plaintiffs in the pending lawsuit will challenge this assumption and seek to continue the injunction of the revised no-match letter process.
Meanwhile, however, in the Supplement DHS has clarified that it - as well as INS before it - has always taken the “informal” position that ignoring a SSA no-match letter can constitute “constructive knowledge” of employment of unauthorized aliens. DHS portrays the new “safe harbor” regulation as an effort to provide specific guidance and protection to employers who follow its steps after receiving a no-match letter. For this reason, employers should not ignore the few no-match letters that SSA has been issuing lately and should consider what steps to take in light of no-match letters received over the past several years.
DHS continues to raid employers it suspects of knowingly employing illegal workers. In doing so, DHS frequently subpoenas employers’ SSA no-match letters from the past and evaluates them as indicators of the employer’s knowledge for purposes of prosecution and fines.
Moreover, DHS states that “[t]he rule does not affect the authority of the SSA to issue no-match letters, or the authority of the Internal Revenue Service (IRS) to impose and collect taxes, or the authority of DOJ to enforce the anti-discrimination provisions of the INA or adjudicate notices of intent to fine employers.” In addition, the rule might not limit the ability of U.S. Attorneys in the Department of Justice to use employers’ responses to SSA no-match letters in prosecutions of employers and managers, which has been increasing.
In an unfortunate and odd legal twist, DHS, reacting to court criticism that it tried to speak for other federal departments, has withdrawn statements from its rule that had reassured employers that compliance with “safe harbor” procedures would insulate them from discrimination charges by the Department of Justice’s Office of Special Counsel. The Office of Special Counsel has issued a statement about the safe harbor rule:
"However, if an employer follows all of the safe harbor procedures outlined in DHS’s no-match rule but cannot determine that an employee is authorized to work in the United States, and therefore terminates that employee, and if that employer applied the same procedures to all employees referenced in the no-match letter(s) uniformly and without the purpose or intent to discriminate on the basis of actual or perceived citizenship status or national origin, then OSC will not find reasonable cause to believe that the employer has violated section 1324b’s anti-discrimination provision, and that employer will not be subject to suit by the United States under that provision."
Employers must implement immigration enforcement measures in a manner that is consistent for all workers and is carefully timed to avoid the appearance of retaliation against workers asserting labor and discrimination protections.
Employers must not use no-match letters to terminate employers without affording them the opportunity to correct the many types of errors in SSA's database that lawful workers can suffer from, such as spelling errors, incomplete names, date order inversion, valid name changes from divorce or marriage, as well as cultural differences in name order. Meanwhile, all U.S. workers should seek to correct errors in their social security account information even aside from a no-match letter in order to reduce confusion with employers. Workers who realize their identity has been stolen should report the problem to a SSA office as quickly as possible. The pressure to correct records exerted by DHS' strategy could put a strain on SSA staffing capability.
In another odd twist, the Supplement seems to acknowledge that employers can ignore SSA no-match letters relating to "grandfathered" employees hired before November 6, 1996, when the law requiring I-9 forms was enacted.
Employers expecting SSA no-match letters once the injunction is lifted should seriously consider joining the E-Verify system, which in effect performs at the time of hire a match against the SSA database (as well as against immigration databases for workers not claiming U.S. citizenship). E-Verify currently cannot be used to verify existing workers, but using E-Verify should help avoid future no-match letters and will prepare employers for increasing requirements by state and federal governments mentioned above.
Of course, neither SSA no-match resolution procedures nor E-Verify participation can prevent effective use by unauthorized employees who have stolen a real person's identity embodied in convincing false documents. Thus, even employers using these measures must remain alert to other signs of a worker's lack of authorization in order to avoid "constructive knowledge."
The Department of Homeland Security (DHS) knows that many employers continue to employ significant numbers of unauthorized foreign workers. Since 1986 all U.S. employers have been required to complete Form I-9 and review documents supplied by each newly hired worker to verify the worker’s identity and employment authorization. False documents using fabricated or stolen identities have evaded the effectiveness of the I-9 process.
DHS is pursuing many parallel paths to prevent the employment of unauthorized workers, including:
• Increased audits by U.S. Immigration and Customs Enforcement (ICE) of employers’ I-9 forms for existing
• Increased ICE worksite raids followed by deportation of unauthorized workers and prosecution of the employers and individual managers ICE alleges to have known the workers were illegal
• Promotion and expansion of DHS’ technically voluntary and pilot “E-Verify” electronic employment verification system through cooperation with states that are increasingly enacting laws threatening employers with loss of government contracts and state business licenses and through an imminent federal regulation that will require all federal government contractors to use E-Verify
• Clarification to employers that ignoring Social Security Administration (SSA) “no-match letters” will constitute “constructive knowledge” that affected workers are not unauthorized to work in the U.S.
The DHS proposed rule, to be published in the Federal Register during the week of March 24, 2008, relates to the last measure. DHS had planned to use SSA no-match letters in its worksite enforcement strategy, both by inserting a new ICE letter with each SSA no-match letter and by updating its I-9 regulations to clarify that an SSA no-match letter can constitute “constructive knowledge” unless the employer receiving it follows certain “safe harbor” procedures. DHS’ “safe harbor” regulation is currently held up by a court injunction in a lawsuit brought by combined employer and union interests, AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal. Aug. 29, 2007). DHS is trying to cure the legal defects pointed out by the court even while it appeals the injunction.
One of the most important defects cited by the court was the failure of the past regulation to conduct an analysis of its impact on small businesses as required by the Regulatory Flexibility Act. In the supplemental proposed rule (the “Supplement”), DHS purports to conduct that analysis, but it only assesses the cost of complying with the “safe harbor” procedures, such as “human resources personnel, certain training costs, legal services, and lost productivity.” DHS estimates the costs at between $3,000 and $34,000 per employer, depending on the number of workers employed. DHS refuses to recognize the economic costs to employers and the economy as a whole that will result from the loss of the services of unauthorized employees who end up being terminated as a result of no-match letters. DHS states that such economic costs are attributable to the twenty-year old law prohibiting employment of unauthorized aliens, “not to this rule.” The plaintiffs in the pending lawsuit will challenge this assumption and seek to continue the injunction of the revised no-match letter process.
Meanwhile, however, in the Supplement DHS has clarified that it - as well as INS before it - has always taken the “informal” position that ignoring a SSA no-match letter can constitute “constructive knowledge” of employment of unauthorized aliens. DHS portrays the new “safe harbor” regulation as an effort to provide specific guidance and protection to employers who follow its steps after receiving a no-match letter. For this reason, employers should not ignore the few no-match letters that SSA has been issuing lately and should consider what steps to take in light of no-match letters received over the past several years.
DHS continues to raid employers it suspects of knowingly employing illegal workers. In doing so, DHS frequently subpoenas employers’ SSA no-match letters from the past and evaluates them as indicators of the employer’s knowledge for purposes of prosecution and fines.
Moreover, DHS states that “[t]he rule does not affect the authority of the SSA to issue no-match letters, or the authority of the Internal Revenue Service (IRS) to impose and collect taxes, or the authority of DOJ to enforce the anti-discrimination provisions of the INA or adjudicate notices of intent to fine employers.” In addition, the rule might not limit the ability of U.S. Attorneys in the Department of Justice to use employers’ responses to SSA no-match letters in prosecutions of employers and managers, which has been increasing.
In an unfortunate and odd legal twist, DHS, reacting to court criticism that it tried to speak for other federal departments, has withdrawn statements from its rule that had reassured employers that compliance with “safe harbor” procedures would insulate them from discrimination charges by the Department of Justice’s Office of Special Counsel. The Office of Special Counsel has issued a statement about the safe harbor rule:
"However, if an employer follows all of the safe harbor procedures outlined in DHS’s no-match rule but cannot determine that an employee is authorized to work in the United States, and therefore terminates that employee, and if that employer applied the same procedures to all employees referenced in the no-match letter(s) uniformly and without the purpose or intent to discriminate on the basis of actual or perceived citizenship status or national origin, then OSC will not find reasonable cause to believe that the employer has violated section 1324b’s anti-discrimination provision, and that employer will not be subject to suit by the United States under that provision."
Employers must implement immigration enforcement measures in a manner that is consistent for all workers and is carefully timed to avoid the appearance of retaliation against workers asserting labor and discrimination protections.
Employers must not use no-match letters to terminate employers without affording them the opportunity to correct the many types of errors in SSA's database that lawful workers can suffer from, such as spelling errors, incomplete names, date order inversion, valid name changes from divorce or marriage, as well as cultural differences in name order. Meanwhile, all U.S. workers should seek to correct errors in their social security account information even aside from a no-match letter in order to reduce confusion with employers. Workers who realize their identity has been stolen should report the problem to a SSA office as quickly as possible. The pressure to correct records exerted by DHS' strategy could put a strain on SSA staffing capability.
In another odd twist, the Supplement seems to acknowledge that employers can ignore SSA no-match letters relating to "grandfathered" employees hired before November 6, 1996, when the law requiring I-9 forms was enacted.
Employers expecting SSA no-match letters once the injunction is lifted should seriously consider joining the E-Verify system, which in effect performs at the time of hire a match against the SSA database (as well as against immigration databases for workers not claiming U.S. citizenship). E-Verify currently cannot be used to verify existing workers, but using E-Verify should help avoid future no-match letters and will prepare employers for increasing requirements by state and federal governments mentioned above.
Of course, neither SSA no-match resolution procedures nor E-Verify participation can prevent effective use by unauthorized employees who have stolen a real person's identity embodied in convincing false documents. Thus, even employers using these measures must remain alert to other signs of a worker's lack of authorization in order to avoid "constructive knowledge."
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