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5 Practical Tips for Form I-9

3/12/2018

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By: Josune Aguirre, Associate of Bernard P. Wolfsdorf, ABIL Lawyer
Wolfsdorf Immigration Blog

The ICE Deputy Director, Thomas Homan, has said he wants to ramp up work site enforcement by 400% and California, a “sanctuary” state, has seen the effects.  As we recently blogged, ICE served notices to 122 southern California companies.  As a result, companies are conducting internal I-9 audits to ensure they have their ducks in a row.

We recently completed several internal I-9 audits for corporate clients and wanted to share some practical tips on how to avoid common mistakes to ensure compliance with immigration rules.  Noncompliant I-9 forms may lead to civil and, in some cases, even criminal penalties.  As such, a practice of noncompliance can become extremely expensive, especially in the current age of increasing compliance and enforcement efforts.
1.  Wrong Form Edition: As of September 18, 2017, all I-9s must be completed on the edition date of 07/17/17. Therefore, Form I-9 with the edition date of 11/14/16 is no longer accepted.  This can be difficult as the only difference on the face of pages 1 to 2 is the edition date located on the bottom left hand corner.  Because they are so similar, employers did not notice when page one (employee’s portion) was completed with the correct form edition while page two (employer’s portion) was completed with the 11/14/16 edition, a noncompliant form.
  • The Solution: Always print out from the website to ensure you are using the most updated form. It is critical to keep up to date with the current Form I-9 edition because although the form seems deceptively simple, failure to use the correct form results in a noncompliant form.  You can correct the error by redoing the I-9 on the correct form edition writing “I-9 redone after internal audit” on the righthand corner.

2.  Over Documentation: This is a non-correctable mistake but can lead to issues both from ICE but also anti-discrimination actions. Pursuant to federal law, an employer should only accept either a List A document or a combination of List B and List C documents, but not both.  A company will often try to show compliance by collecting documents from List A, List B AND List C but this results in many over-documented I-9 forms and can run the risk of exhibiting a pattern or practice of discrimination which could result in civil penalties.
  • The Solution:  Ensure personnel are well trained and consider using the fillable Form I-9 PDF which prevents the occurrence of over documentation as it will only accept a List A document or a List B and C document.  Further, if you find I-9s with overdocumentation, the Immigrant and Employee Rights Section (IER) (previously OSC) recommend employers to evaluate those I-9 forms to determine if there was a pattern of non-compliant practice.  If there is, remediate non-compliance I-9 forms, create a companywide non-discrimination policy and provide refresher training for all hiring professionals on I-9 processes.  A memo to file explaining these actions in response to these findings could help show due diligence and compliance if you are subjected to an audit in the future. However, we highly suggest discussing the matter with an experienced immigration attorney.

3.  Inconsistent Record Keeping: We found that many companies are inconsistent with their I-9 maintenance. Some departments would keep copies of documents presented in support of the employee’s work authorization while others only maintain the actual I-9.  This is problematic as the practice can be seen as discrimination and if audited, this form of discrimination could also lead to civil and criminal penalties.
  • The Solution: Have a companywide policy to either copy the supporting documents or not, but make sure there is consistency across the board. However, as a practice pointer, copies are evidence of good faith as a copy usually evidences that the document on its face, reasonably appeared genuine.

4.  Alterations: Forms with white outs, scratch outs, and black outs are all too common. However, concealment of a correction can lead to increased liability under federal law.
  • The Solution: Draw a line through the incorrect information, enter the correct information, and initial and date the correction. If there are many mistakes, redo the section on the current Form I-9 edition, attach it to the original Form I-9 and write the reason for the correction on the righthand corner.

5.  Reverification: Employers must reverify employees on or before employment authorization expires.  However, U.S. citizens and permanent residents are not subject to reverification (except permanent residents who submitted temporary I-551 stamps).  The reverification must be done on the current Form I-9 edition at the time of the reverification.  We noticed that employers either did not reverify, reverified after the employment authorization expired, or on the wrong form edition which all result in a noncompliant I-9.
  • The Solution: Calendar, calendar, calendar! Also, ensure there is a system in place to share the expiration dates to safeguard any personnel in charge of I-9 compliance. If you find out that an employee has not been reverified and should have been, we suggest a reverification be done which includes a note stating that the I-9 was reverified after an internal audit on the righthand corner.​
In sum, an employer cannot fix all errors but if the employer shows good faith – it can mitigate penalties as ICE looks at good faith as a mitigating or enhancing factor when issuing the recommended fine contained in the Notice of Intent to Fine.  ​
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Beware the Justice Department’s Stealthy Grab for Enhanced Power to Enforce Immigration Discrimination Rules

10/13/2016

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators

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[Blogger’s Note: Today is the last day to submit comments to the Justice Department on its proposed rule which would modify its immigration-related antidiscrimination regulations, which are enforced by the Office of Special Counsel for Unfair Immigration-Related Employment Practices (the Special Counsel). The proposal’s fine print reveals that DOJ’s effort is in essence an unlawful power grab that would expand the time for the Special Counsel to file a claim before an Administrative Law Judge from 180 days to five years, strengthen the government’s hand in proving its case, and strip employers of legitimate defenses.  My colleague, Maura Travers, and I drafted a comment which lays out why this grab for power should be stopped.  Today, on behalf of the Alliance of Business Immigration Lawyers, I submitted the following ABIL comment without the caption and byline of this post.  Stay tuned for the final rule.  Meantime, see all public comments here.  Comments of the American Immigration Lawyers Association and the U.S. Chamber of Commerce are accessible at the preceding links.]

Beware the Justice Department’s Stealthy Grab for Enhanced Power to Enforce Immigration Discrimination Rules
By Angelo A. Paparelli and Maura Travers
Submitted Electronically via https://www.regulations.gov
Hon. Loretta E. Lynch
Attorney General
U.S. Department of Justice

RE: Comment on Proposed Rulemaking entitled “Standards and Procedures for the Enforcement of the Immigration and Nationality Act,” 81 Fed. Reg. 53965, with deadline extended, 81 Fed. Reg. 63155. [CRT Docket No. 130; AG Order No. 3726-2016] RIN 1190-AA71
Dear Attorney General Lynch:

This comment will respond to your Notice of Proposed Rulemaking entitled Standards and Procedures for the Enforcement of the Immigration and Nationality Act, 81 Fed. Reg. 53965 (the proposed rule). I submit this comment on behalf of the Alliance of Business Immigration Lawyers, of which I am a member, and in my capacity as a lawyer who has litigated numerous administrative claims of unfair immigration-related employment practices. The views I express are those of ABIL and me, and do not necessarily reflect the opinions of any other person or entity.

ABIL is comprised of 19 of the top U.S. business immigration law firms and practice groups, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 250 attorneys (700+ total staff) devoted to business immigration in 25 major U.S. cities, and 25 international destinations. A number of our ABIL members have served as a past President or as members of the Board of Governors of AILA (the American Immigration Lawyers Association), the 11,000-member organization comprised of most U.S. immigration lawyers. Our ABIL lawyers are also immigration law professors at prominent law schools, and have written well regarded immigration treatises and textbooks. ABIL regularly comments on proposed rules and draft agency memoranda.

Introduction. The proposed rule would amend 28 CFR § 44 — which was codified to enforce § 102 of the Immigration and Control Act of 1986 (IRCA) — in order to incorporate the statutory text as amended by § 421 of the Illegal Immigration Reform and Immigrant Responsibility Act  of 1996  (IIRIRA). The current rule prohibits certain unfair immigration-related employment practices and designates the Office of Special Counsel for Immigration-Related Unfair Employer Practices (Special Counsel) to investigate complaints.

As explained below, the proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices. These changes contravene the statutory text and the legislative history of the governing statutes, and would impose unreasonable burdens on employers, even though an employer’s actions were not motivated by immigration-related animus or hostility. The proposed rule would also substantially expand the authority of the Special Counsel to investigate allegations of immigration-related unfair employment practices and the time periods within which individuals and the Special Counsel must file complaints against employers with the Office of the Chief Administrative Hearing Officer (OCAHO).

Overly Broad Proposed Definition of Citizenship Status. Proposed 28 CFR § 44.101(c) would provide a new definition of the phrase “citizenship status” found in Immigration and Nationality Act (INA) § 274B [codified at 8 U.S.C. § 1324b] to mean “an individual’s status as a U.S. citizen or national, or non-U.S. citizen, including the immigration status of a non-U.S. citizen.” By statute, however, the protection against citizenship status discrimination only applies to certain protected individuals, not to all non-citizens. Protected individuals under § 274B include only U.S. citizens, certain lawful permanent residents who are taking timely steps to become U.S. citizens through naturalization, and persons granted classification as refugees, asylees or temporary residents under IRCA’s 1986 legalization program (assuming that such temporary residents still exist).
The citizenship-status definition should not be expanded to include all non-citizens but only to persons who are protected individuals under INA § 274B. Thus, the definition must be narrowed so that, as revised, it would expressly exclude the following foreign nationals (1) lawful permanent residents who have not timely pursued naturalization, (2) applicants for asylum or refugee status, and (3) foreign citizens in the United States, with or without a particular legal status, who are not “protected individuals” under § 274B.

The Department of Justice (DOJ) offers Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO no. 568, 1641, 1647 (1993), as justification for the inclusion of all non-citizens in the proposed definition of citizenship status. That decision, however, is inapplicable because the supposed proposition for which the Special Counsel cites the case is obiter dictum — given that the claimant, Ms. Kamal-Griffin, was a U.S. lawful permanent resident. As a result, this case only provides justification for limiting the class of non-citizens to persons who are statutorily protected against citizenship status discrimination, including lawful permanent residents such as that claimant. In Kamal-Griffin, the Administrative Law Judge stated:

IRCA’s legislative history makes clear that Congress intended the term “citizenship status” to refer both to alienage and to non-citizen status. The House of Representatives Committee on the Judiciary (“Committee”), recognizing the importance of an authorized individual’s right to work, stated its rationale for prohibiting employment discrimination based on citizenship status:
The Committee does not believe barriers should be placed in the path of permanent residents and other aliens who are authorized to work and who are seeking employment particularly when such aliens have evidenced an intent to become U.S. citizens. It makes no sense to admit immigrants and refugees to this country, require them to work and then allow employers to refuse to hire them because of their immigration (non-citizenship) status. Since Title VII does not provide any protection against employment discrimination based on alienage or non-citizen status, the Committee is of the view that the instant legislation must do so.

H.R. Rep. No. 682, Part 1, 99th Cong., 2d Sess. 70 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5674. (Emphasis added.)
Clearly, then, Kamal-Griffin stands for the proposition that only narrowly prescribed categories of non-citizens are eligible to assert citizenship status discrimination, namely, lawful permanent residents, refugees and asylees. Accordingly, the definition of citizenship status should be correspondingly narrowed to exclude non-citizens who are not “protected individuals” under § 274B.

Proposed Elimination of Burden on Special Counsel to Prove Animus or Hostility. Among the most pernicious amendments to the current regulation sought by the DOJ in the proposed rule would hold employers liable for citizenship status discrimination if they treat employees or applicants for employment differently based on their immigration status, regardless of whether there is proof of animus or hostility involved. The proposed rule would amend the discriminatory intent requirement by incorporating the term “discriminate” as the term is allegedly now defined in § 274B following enactment of § 421 of IIRIRA in 1996. The proposed rule seeks to clarify that “discrimination means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility.”
The Special Counsel’s position seems to be that the DOJ must merely prove that the employer intended the natural and foreseeable consequence of its actions and that essentially violations can be found on virtually a strict liability basis. That position is incompatible with the current regulation and the cases interpreting INA § 274B. To establish a violation under applicable case law, the Special Counsel must prove that an employer knowingly and intentionally discriminated on the basis of citizenship status.

The regulations interpreting INA § 274B provide:
(a)(1) General. It is an unfair immigration-related employment practice for a person or other entity to knowingly and intentionally discriminate or to engage in a pattern or practice of knowing and intentional discrimination against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment-
Because of such individual’s national origin;

In the case of a protected individual, as defined in 44.101(c), because of such individuals’ citizenship status.

28 C.F.R. § 44.200 (emphasis added.) Sections (a)(2) and (a)(3) describe the companion retaliation and documentation abuse provisions, which are defined as “unfair immigration-related employment practices,” subject to the same standard. Id.

The cases discussing the statute and regulations make clear that a specific, discriminatory intent must motivate any alleged violation of anti-discrimination provisions of INA § 274B.

Instructive is the case of  U.S.A. v. Diversified Technology & Services of Virginia, Inc., 9 OCAHO 1095 (2003). In that case, the Special Counsel maintained, just as in the proposed rule, that “intentional discrimination does not require proof that the employer subjectively harbored some special, hostility, toward the protected group, only that the employment decision was premised upon the protected characteristic.” Diversified Technologies, 9 OCAHO 1095. The Administrative Law Judge (ALJ) rejected that analysis, finding instead that
The adverse decision must be shown to have actually been made by reason of, on account of, or on the basis of the protected characteristic. . . . This means at a minimum that there must be a factual basis upon which a rational fact-finder could infer a causal connection; the nexus cannot be established just by a formulaic assertion that the protected characteristic was the reason.”
Id. at 19. (Emphasis added.) The court also ruled:
Congress did not intend that all mistakes in the verification process should give rise to penalties under § 1324b either; by amending 1324(b)(a)(6) in the manner it did, Congress has specifically instructed us that errors in carrying out documentary inquiries for purposes of § 1324a compliance can now be penalized under § 1324 only where there is a showing that there actually was a discriminatory intent.
Id. at 21 (emphasis added). See also, Ondina-Mendez v. Sugar Creek Packing Co., 9 OCAHO 1085 (2002) (holding that “[t]he addition of the intent requirement means that now an employer may avoid liability if the employer can present persuasive evidence that its request for additional documents, its refusal to accept verification documents that appear genuine on their face, was made for legitimate reasons not attributable to discrimination.”)

Given these decisions, the proposed rule should be revised so that the Special Counsel must still present direct evidence of a discriminatory intent, hostility or animus in order to establish a violation of the statutory protection against citizenship status discrimination.

Unjustifiable Expansion of Time Periods for Investigation and Deadlines to File Complaints. Under the current regulations at 28 CFR § 44, an individual or an organization may file a charge with the Special Counsel within 180 days of the alleged occurrence of an immigration-related unfair employment practices. If the Special Counsel receives a charge more than 180 days after the alleged occurrence, the Special Counsel must dismiss the charge with prejudice.

The proposed rule would vastly expand the Special Counsel’s investigatory timeframe by granting the Special Counsel discretion to apply the principles of “waiver, estoppel, or equitable tolling” to investigate charges filed beyond the 180-day filing deadline. These expanded “equitable” provisions provide the Special Counsel with immense leeway to obviate the statutory 180-day filing deadline found in INA § 274B.

As provided in § 274B and 28 CFR § 44, the Special Counsel must undertake an investigation of a charge and file a complaint before an administrative law judge (ALJ) within 120 days of receipt of the charge. If the Special Counsel declines to file a complaint, the charging party must file a complaint with an ALJ within 90 days after receipt of the Special Counsel’s letter of determination.

Under the proposed rule, however, the Special Counsel will not be bound by the statutory time limits that are applicable to individuals filing private actions. The Special Counsel’s authority to file a complaint based on a charge by a complaining party would be subject to the “equitable limits on the filing of a complaint.” In other words, the Special Counsel would have up to five years to file a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO).

As a practical matter, the elimination of the current deadlines, quite foreseeably, would be extremely burdensome and disruptive to employers who are asked to produce documents for inspection during an investigation — including Employment Eligibility Verification Forms (Forms I-9) — up to five years after an alleged occurrence. Under the current U.S. Citizenship and Immigration Services I-9 regulations, employers are only required to retain Forms I-9 for terminated employees for a maximum of three years after the date of hire or one year after the date of termination, whichever is later.

Even more troubling, the proposed rule would inexplicably eliminate the current 180-day limit within which the Special Counsel may file a complaint alleging an unfair immigration-related employment practice with the OCAHO. In making this proposal, the DOJ does not explain why it is no longer reasonable to continue with the current rule which was found acceptable to the Department in 1987, as shown in the excerpt from the Supplementary Information accompanying the current rule:
Section 44.304 Special Counsel acting on own initiative.

Section 44.304(b) has been amended in the final rule to limit the period of time in which the Special Counsel. on his or her own initiative. may, investigate and file a complaint of an unfair immigration-related employment practice. We believe that requiring a complaint to be filed within 180 days of the occurrence of an unfair immigration-related employment practice is a reasonable implementation of the desire of Congress reflected in 8 U.S.C. 1324b(d)(1), (3), to place a time limit on the actions of the Special Counsel.
52 Fed. Reg. 37402, 37409 (Oct. 6, 1987). (Emphasis added.)

Accordingly, these proposed changes unjustifiably expanding the time periods for investigation and the deadlines to file complaints, should not be adopted. The current rule should stay the same. If in a given case equitable principles ought to be applied to extend these time periods, then the decision to do so should be reposed solely in the discretion of the Administrative Law Judge based on the evidence presented.

Misleading Change of Definition of Charging Party. The proposed rule contains an amended definition of the term “charging party.” It would replace the word “individual” with the term “injured party.” The DOJ maintains that the changed term is merely undertaken “in order to simplify the regulatory text.” The definition of charging party should remain as it now is or be clarified to eliminate the impression, even if only subliminally, that an individual filing a claim has been “injured.” Use of the phrase, “injured party,” will then likely appear in every OCAHO published decision where a person files a claim, even in cases where an Administrative Law Judge has dismissed the claim as unproven. The mere assertion of injury is insufficient to be given the designation of “injured party.” This term in the definition should remain the same or be changed to a neutral term, such as “claimant.”
* * *
For these reasons, Attorney General Lynch, you should reject the Special Counsel’s proposed changes to the current regulations. The changes reflect the unlawful and unfair placement of the government’s finger on the scales of justice. When Congress enacted INA § 274B, and amended it with the enactment of IIRIRA, it could never have been envisioned that the 1996 limitations on the authority of the Special Counsel would be used as justification for a wholesale expansion of governmental power and the regulatory elimination of lawful defenses that employers may assert before an ALJ. The scales of justice are in equipoise. They should remain that way.

Respectfully submitted,

The Alliance of Business Immigration Lawyers

Angelo A. Paparelli, member
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Immigration on a Clean Slate: Game Changing Proposals on Visa Modernization

2/9/2015

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators
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Terabytes of text have already been generated in the course of extolling or excoriating President Obama for his November 20 Executive Actions on Immigration.  The prolific foaming of bloviating mouths has mostly been prompted by the promise of deferred action and work permits for undocumented immigrants under the DACA and DAPA programs.  Surprisingly, however, his equally profound measures to improve the legal immigration system have been lost in the GOP’s ongoing Sturm und Drang over what they dub “Executive Amnesty.” Among these legal immigration reforms, an almost overlooked November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) invited the submission of individual and stakeholder recommendations to improve legal immigration.  If the Obama Administration were to embrace the best of the recommendations submitted in response, many good things would flow from this crowd-sourcing initiative.  Without involving or seeking the consent of Congress, the Administration could readily adopt a plethora of path-breaking innovations to our legal immigration system which would profoundly improve how this country welcomes and benefits from foreign strivers, entrepreneurs, scientists, students, investors and other worthy contributors.

As my colleagues, Gary Endelman and Cyrus Mehta put it recently:

At the end of the day, immigration policy is not only, or even primarily, about the immigrants but about how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.
The November 14 memorandum directed the Secretaries of Homeland Security and State to solicit proposals from stakeholders and the public to modernize the legal immigration and visa system.  The Secretaries of DHS and DOS would then evaluate the proposals so submitted in consultation with  several Cabinet members (the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education), and other federal officials (the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, and the Director of the Office of Science and Technology Policy).  The official invitation to submit ideas took the form of a December 30 Notice of Request for Information, which allowed the submission of up to 30 pages of commentary by January 29.  The comment period has closed, and the proposals are now posted online for all to see.

Some of the most thoughtful suggestions, accompanied in many cases by convincing citation to legal authority, came from members of the Alliance of Business Immigration Lawyers (ABIL); members of the American Immigration Lawyers Association (AILA); a collection of 16 business-immigration stakeholder organizations (the 16); two individuals, attorney Nicole Kersey of Kersey Immigration Compliance (KIC), and Don Crocetti, managing member of Immigration Integrity Group, LLC (IIG) who formerly served as Chief of the Fraud Detection and Nationality Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS); the American Immigration Council (the Council); the Society for Human Resource Management through its strategic affiliate, the Council for Global Immigration (CFGI);  the U.S. Chamber of Commerce (the Chamber); the International Medical Graduate Taskforce (IMGT); the Center for American Progress (CAP) and the Global Workers Justice Alliance (GWJA).

Here are just a few of the many recommendations (accessible through the hyperlinks in the preceding paragraph) which I believe would comprehensively transform and improve America’s decrepit immigration system:

Improve access to justice. ABIL, AILA and the Council urged the Department of State (DOS or State) and U.S. Customs & Border Protection (CBP) to grant every individual interviewed by a federal immigration official the right to the representation of an attorney (either  in person or by electronic means, but still at no cost to the government).  The right to counsel would extend to (a) visa applicants who are interviewed by a consular officer, (b) applicants seeking admission to the U.S. during secondary or deferred inspection who are interviewed by a CBP officer, and (c) petitioners seeking immigration benefits who are interviewed in the course of FDNS site visits by USCIS investigators.  ABIL also urged State and DHS to create a pilot system of binding review of decisions by consular officers to refuse certain categories of visas (all immigrant visas and nonimmigrant refusals under the E-1 treaty trader, E-2 treaty investor, E-3 Australian specialty occupation worker, H-1B specialty occupation, L-1 intracompany transferee and O-1 extraordinary ability visa categories).

Develop a single body of “immigration common law” and revitalize the advisory opinion process. ABIL proposed the creation of a single administrative tribunal to hear  appeals from decisions and adjudications by all federal immigration agencies, thereby consolidating the work of multiple federal appellate panels and reducing the  complexity and inconsistency of precedent and non-precedent immigration law decisions.  ABIL also proposed that State publish all of its now-secret Advisory Opinions which guide consular officers in visa determinations and that USCIS adopt a published IRS-style private letter ruling process whereby the party seeking written guidance on the legal consequences of a particular set of facts would receive a binding interpretation but other stakeholders might benefit from the agency’s non-binding guidance in analogous circumstances.

Prohibit relitigating prior USCIS decisions granting employment-based immigration benefits.  The 16, the Chamber, AILA and CFGI proposed that USCIS give “binding deference” to the agency’s previous grants of employment authorization whenever a petition seeking extension of the employer’s petition and of the worker’s nonimmigrant status involves the same employer, same employee, and same job duties, unless an adjudicator can establish, and articulate with specificity, fraud or clear gross error.  Such a change would necessarily reduce the burdensome and frequent requests for additional evidence (RFEs) and introduce a welcome measure of reliability, consistency and predictability to the process of extending the work permission of nonimmigrant employees.  To make this change, USCIS would need to adopt IIG’s proposal to speedily transition away from its “antiquated paper environment, supported primarily by legacy INS [Immigration and Naturalization Service] mainframe systems and databases with little to no interface or advance search or analytics capabilities” and instead it must “automate” “all USCIS systems and filing processes”.

Hasten the issuance of work visas, immigrant visas, green cards, work authorization and international travel permission.  Many commenters (including ABIL, AILA, CFGI and the 16) proposed that State and USCIS adopt a range of proposals which, in various ways, would (a) count only the principal worker and not the dependents when reporting and applying the cutoff date on available immigrant visas as announced in State’s Visa Bulletin, (b) recapture the hundreds of thousands of immigrant visas from prior years that were unused and thus squandered because of inadequacies in the way green-card quotas were allocated between DOS and USCIS, (c) allow for much earlier acceptance of employment-based applications for adjustment of status, thereby hastening the issuance of Employment Authorization Documents (EADs) and Advance Parole travel authorization, and (d) plug gaps in the grant of employment authorization by extending it for longer periods or on an interim basis to more categories, e.g., persons in U visa status, applicants for renewal of EADs, and persons holding employment-based work-visa status in nonimmigrant categories omitted by the 240-day period of interim employment authorization allowed in the Form I-9 (Employment Eligibility Verification) regulations. GWJA also urged that USCIS, upon approving an immigrant visa petition, automatically forward the notice of appearance (Form G-28) to State’s National Visa Center so that prolonged delays now experienced in the recognition of attorney representation would be eliminated.

Clarify and liberalize the rules on immigration successorship in interest. ABIL proposed that DHS and DOS adopt a successor in interest principle that would (a) expand the range of situations in which corporate restructurings are recognized for immigration purposes, thereby allowing uninterrupted employment authorization and the preservation of pipeline employment-based immigrant visa and adjustment of status benefits, and (b) dispense with current USCIS interpretations whereby immigration successorship requires an “assumption of all or some liabilities, whether they be solely immigration-related liabilities or liabilities associated with the occupational classifications of the particular beneficiaries affected by the change in corporate circumstances.”

Adopt improvements to promote investment, entrepreneurship, job creation and business innovation.  Many of the commenters suggested changes to spur investments, business activity, innovation and job creation.  CFGI proposed the creation of a “Robust Trusted Employer Program” which would allow faster and more streamlined approvals of requests for immigration benefits submitted by “any employer that can demonstrate a track record of compliance with applicable [immigration] laws.”  ABIL urged the Obama Administration to “create an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department.”  AILA and ABIL proposed that DHS “create explicit immigration protections and benefits for small businesses,” e.g., by (a) rescinding the Neufeld Memorandum (which effectively abolished the distinction, long recognized in precedent decisions that, for immigration purposes, a corporation is to be considered distinct from its owners), (b) clarifying that the customary attributes of start-ups and small businesses are not necessarily indicia of fraud, and (c) adopting in formal policy guidance and ultimately in regulations the formal recognition that the characteristics of start-ups as set forth in USCIS’s Entrepreneur in Residence training materials are acceptable examples of legitimate forms of business operations and activities. ABIL and AILA also proposed numerous improvements that should be implemented by USCIS’s EB-5 Immigrant Investment Program Office (IPO) in order to promote the IPO’s announced goals of enhanced transparency of eligibility criteria, speedier case processing and the safeguarding of EB-5 program integrity.

Enhance immigrant and nonimmigrant protections and promote immigration integrity. A number of commenters suggested that DHS and DOS should ease eligibility requirements or offer enhanced benefits to individuals seeking or holding a particular visa status.  IMGT offered a range of suggestions to improve the lot of foreign medical graduates (FMGs) including, among other proposals, H-1B cap gap relief for FMGs, clarification that J-2 dependents of  FMGs are not subject to the two-year, home-country, physical-presence requirement applicable to J-1 FMGs, and clearer and more expansive interpretations of (a) “affiliated or related” parties eligible for exemption from the annual H-1B quota, and (b) requirements for the physician national interest waiver. GWJA also suggested several improvements, including, for example, enhanced protections available to individuals who have applied for or hold U visa status, job “portability” benefits for H-2B workers, greater age-out protections for dependents in VAWA cases, and an obligation undertaken by DOS to provide more explicit statements of the actual grounds for a visa refusal and not merely uninformative citation to the general ineligibility ground of denial found at Immigration and Nationality Act (INA) § 214(b). CAP urged DHS and DOS to improve transparency and reporting of data on LGBT individuals who seek or hold refugee admission or asylum status. Don Crocetti of IIG suggested that USCIS automate immigration case processing and build “a person and organization centric data system complete with electronic filing and web-based interviews” — a system which “contains advanced and ‘Big Data’ analytics to support a proactive anti-fraud operation.”

Freeze I-9 and worksite enforcement until USCIS has decided all DACA/DAPA applications for work permission. Nicole Kersey of KIC, along with ABIL, proposed that the DHS Secretary cause U. S. Immigration and Customs Enforcement (ICE) to suspend and defer, on a temporary basis, worksite investigations and enforcement of certain employer-sanctions provisions of the Immigration Reform and Control Act (relating to the maintenance of Forms I-9 and the duty of employers to refrain from knowingly hiring or continuing to employ unauthorized workers).  The temporary freeze would end, they proposed, once USCIS certifies that it has decided all applications for work permission under the DACA and DAPA program.  The purpose of the proposed deferral of ICE enforcement, Ms. Kersey and ABIL explained, would be to avoid actions that might undermine the President’s goals of maintaining family unity in mixed-status households and encouraging eligible DACA and DAPA applicants to “get right with the law” and “come out of the shadow.”   These laudable Presidential purposes, the proponents maintained, would be jeopardized if ICE — by virtue of a worksite enforcement action — were to impose a duty on employers to fire unauthorized workers who may ultimately receive employment permission.

Improve Federal Immigration IT Infrastructure.  AILA suggested several IT enhancements, including USCIS acceptance of online payment of filing fees, standardization of web-published protocols and response times to email queries submitted to consular officers at posts worldwide, and permitting additional functionality in the “myUSCIS” Case Status Online query system by allowing access to the actual RFE or notices of intent to revoke or deny a petition issued rather than merely viewing a report that an RFE or notice has been issued (which must then await delivery by snail mail).  In addition, ABIL and AILA suggested that — in the words of the AILA comment — “As USCIS continues to develop ELIS [the USCIS Electronic Immigration System] and expand its functionality to other forms and uses, it would be in the agency’s best interest to reach out to vendors and large-scale users, including AILA, for regular usability testing and feedback.”  ABIL proposed a variety of additional IT suggestions:

  1. DHS (USCIS and CBP) DOL (the Office of Foreign Labor Certification (OFLC)) and DOS (the Bureau of Consular Affairs [BCA]) should work to achieve interoperability for users so that employers, petitioners and applicants for immigration benefits, lawyers, law firms and organizational stakeholders such as universities need not be forced to re-enter the same data into disparate, siloed systems;
  2. All possible questions in online forms that function as a database, such as the BCA’s DS-160, where distinct questions appear as determined based on earlier answers to prior questions, should be published and available in full with a cross-referencing of questions and answers by visa category so that the public, as contemplated by the Paperwork Reduction Act, can know in advance what information to assemble.
  3. All electronic forms should provide the opportunity to expand on or clarify an answer to any question on the form in data fields permitting unlimited entry of text, since many questions cannot be answered truthfully and fully with, for example, a simple “yes” or “no” reply. Many such questions require the application of fact to law and thus require an answer that is consistent with applicable law. As currently configured, these forms invite a later accusation by federal immigration authorities of, inter alia, a willful, material misrepresentation under INA § 212(a)(6)(C), a falsely made document under INA § 274C(f), or a false statement under 18 U.S.C. § 1001;
  4. The attorney for an employer (with authorization of the subject individual employee or family member) should be allowed to access and download the electronic I-94. As the CBP e-I-94 system now is configured, only the applicant for admission who is ultimately admitted, or his or her attorney, can access the database and retrieve the I-94. Many large corporations centralize the management of their foreign employee’s maintenance of immigration status through counsel. Without access to the e-I-94 system by corporate counsel, this process is severely impeded and the prospect of an inadvertent violation of the unlawful-presence 3- and 10-year bars could occur; and
  5. Online visa application[s] and [USCIS] immigration forms should allow the user to move from one screen to the next without completion of all relevant data requested in the screen. Often, some but not all information is not presently available. The online systems should also allow saving, downloading, and emailing partially completed forms so that information already provided need not be required to be re-entered again.
* * *
Since other commenters’ proposals were not summarized, and additional comments of the submitters identified above may have been given unintentional short shrift, I encourage all immigration stakeholders to spend as much time as possible reading the full set of comments and then, using all forms of social and traditional media, to focus public attention on the innumerable ways that DHS, DOS and the several agencies that administer federal immigration laws can optimize our nation’s legal immigration system.  It is broken; so let’s make the Administration fix it.
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Immigration Voices: Baring My Teeth at I-9 Enforcement Inequalities

6/30/2014

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by Angelo Paparelli, Past ABIL President
Nation of Immigrators

[Blogger's note:  Here we go with another guest column from Nicole (Nici) Kersey who offers a witty, wise and worthy post on the inequities and inanities of the worksite enforcement scheme concocted by Congress in 1990, a flawed system of employer deputization of governmental functions largely maladministered by various agencies of the Executive Branch.  Worse yet for employers, the states too are getting into the act.  Witness last week's California Supreme Court decision, Salas v. Sierra Chemical Co., which held that claims of undocumented workers who present false documentation during the I-9 process are enforceable against employers under state antidiscrimination and worker protection laws , despite the defense of federal immigration-law preemption  -- at least until the employer receives notice that the worker is unauthorized for employment.  So the broken enforcement scheme creates ever more headaches and hurdles for employers.]
Baring My Teeth at I-9 Enforcement Inequalities
By Nicole (Nici) Kersey
I admit it.  I know more about quidditch than about soccer.  The World Cup holds little interest for me, aside from the occasional glimpse of impressive Chilean, French, or Honduran abs[1].  (And, lucky for me, I can skip the games and jump to VH1’s “Best Soccer Abs” contest to see the most rippling of 6-packs.)
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So as the rest of the world holds its breath while these guys run up and down the field, apparently biting one another and causing Adidas to pull “teeth-baring” ads, I’ve been holed up in my office working and, for fun, binge watching Orange is the New Black.  I read the book before it became a series, but when my nearly 4-year-old daughter asked me (completely out of the blue[2]) – “Mommy, why are you probably going to die in jail?” – I thought I should study up.

The World Cup and the New Black both got me thinking about the assumptions people make based on appearances or accents.  In many ways, soccer and prison are great equalizers.  You can play soccer no matter what your size, gender, citizenship status or national origin.  And in jail, while race, gender, and age may divide inmates more dramatically, those who may never have come into contact on the outside become roommates (at least they do on tv), wear the same clothes regardless of wealth, and eat the same food.

In the immigration world, employers face a number of dilemmas every day, driven largely by the appearance or voice of employees or applicants:

  • When to ask if someone is authorized to work in the U.S.
  • Whether to ask what a job applicant’s immigration status is
  • Whether to refuse to sponsor a visa
  • When to refuse a document presented as proof of work authorization
  • When and how deeply to investigate a tip indicating that a worker or group of workers lacks work authorization
  • Whether to terminate a worker’s employment if the individual comes forward with a new SSN/identity and admits that he was previously not authorized to work
  • What type of document an employee must present to prove work authorization (and whether the employer can specifically ask for that document)
These are just a few examples that lead to seemingly awkward situations in which a recruiter cannot ask the applicant with the great French accent whether he’s from France or Canada; and an HR manager is warned not to tell the new intern that she needs to see his I-20, even when that’s the only document he could possibly present to prove work authorization.   Because of confusion about the proper questions to ask on a job application, employers find themselves rescinding job offers to new hires who turn out to be H-1B employees.

And employers who work hard to ensure equality, making no assumptions based on appearance, native language, a foreign-sounding accent, or citizenship status, face a serious and unjust risk:  if it turns out that those employees lack work authorization, the employer faces a greater likelihood of penalties for Form I-9 paperwork violations and increased fine amounts, even if the employer had no reason to know that the employees were unauthorized.

Under ICE policy, employers who would otherwise receive a Warning Notice for paperwork violations (avoiding fines), must instead receive a Notice of Intent to Fine (NIF) in “instances where unauthorized aliens were hired as a result of substantive paperwork violations.”  While this policy implies that the paperwork violation must have actually caused the employer to hire someone who was not authorized to work, in practice ICE need not prove causation: correlation is sufficient.  (If causation could be shown, one might expect ICE to charge the employer with a knowing hire violation instead of – or in addition to – a paperwork violation.)

Once the employer is on the hook for fines, ICE increases the base fine amount by 5% for each I-9 relating to an unauthorized worker.  (An increase is suggested by the regulations, though no specific percentage is set out.)

This leaves employers, particularly in the construction, hotel, manufacturing, and restaurant industries particularly vulnerable.  They’ve been effectively deputized and asked to enforce the immigration laws.  They are prohibited from discriminating based on citizenship or national origin.  They must accept documentation as proof of identity that reasonably appears to be genuine and to relate to the employee presenting it.  Yet if they make a substantive error on the Form I-9 (such as attaching copies of the employee documentation to the form instead of writing the data in Section 2; or failing to make the employee input his A# in Section 1 of the form), and the employee turns out to lack work authorization, the employer is at a high risk for high-level fines (again, even if the employer did not have any reason to suspect that the employee was not work-authorized).

An employer in another industry (such as the banking or consulting industry) is at a much lower risk, even with a high rate of paperwork errors, simply by virtue of the makeup of its applicant pool and the birthplace of its employees.  The employer is less likely to be inspected by ICE in the first place.  If inspected, it is more likely to receive a Warning Notice for its paperwork violations, and if fined, the fines will be lower due to the lack of unauthorized workers.

In the end, it seems that while employers are prohibited from discriminating, government policy encourages them to do so.

And now … back to the best abs contest, where Chile and Portugal are on even footing with the French.  Though when determining a winner here, I think it’s okay to take a foreign-sounding accent into account.

[1] The Spanish and Portuguese are in the running as well.

[2] Okay, so we took her to see Muppets Most Wanted, which has resulted in a much more detailed discussion of gulags, jails, thieves and burglars than I ever expected to have with my child.

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Objection! (To Wearing Suits, Growing Up, and Immigration Law in TV and Film)

7/21/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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[Blogger's note: Today's post comes from the prolific keyboard of Nici Kersey, a friend and colleague whom I number among the best in I-9 and E-Verify compliance issues. She writes about our shared reluctance to grow up (as I write this, I'm singing my anthem -- a certain song from the musical, Peter Pan) and our mutual antipathy to phony depictions of immigration law in cinema and television. For me, my favorite immigration shows are the original Superman, My Favorite Martian, and Mork and Mindy.  As for film, I've blogged before on its ability to  influence the immigration debate. But enough of me.  HEEEEEEEERE'S NICI!]

When I put on a suit, I feel like I’m pretending to be a grown up.  My husband keeps reminding me that we are “getting older” (well, duh).  My friends say that my evolving taste for nonfiction (I’ve always read fiction, leaning toward young adult novels) can be attributed to my advancing age.  And I generally have no idea what my 13-year-old stepdaughter is talking about.

I’ve been married for 11 years; my ten-year college reunion was ages ago; and the lady at the cosmetics counter has started recommending anti-aging moisturizers.  My daughter will turn three in August.  I own my own business.  I still don’t feel like a “real” grown up. 

I’ve been an attorney for six years now, but I don’t feel like an attorney – or at least not the way I always imagined being an attorney might feel.  I don’t feel important; I don’t like carrying a briefcase; and I have never yelled “objection!” in court.  I am desperate to use puppets in my I-9 training.

I’ll be honest;  I feel most like an attorney when I’m watching TV.  I think “this must be what doctors feel like when they watch Grey’s Anatomy.”  (Yes, doctor friends, I think you sit around watching ER and Nurse Jackie, noting the gross inaccuracies.) 

Brothers and Sisters was, for the first several seasons, a favorite show of mine.  But then in the fourth season Sarah Walker’s French fiancée, Luc, whose visa was running out, suddenly won the green card lottery.  In the show, this meant that an envelope appeared  in the mailbox one day, and inside that envelope was a green card.  Problem solved.  “Objection!” I shouted at the television.  What crap.  He may as well have won it via a scratch-off ticket he bought on a whim at the gas station.

In Green Card, then-INS officers more-or-less stalk a couple who have committed fraud by marrying solely to obtain a green card (they, of course, fall in love “for reals” in the process).  Despite their newfound love for one another, Gerrard Depardieu’s character is deported – not because the marriage was entered into for the purpose of committing immigration fraud – but because he cannot remember the name of his wife’s face cream.  I can barely remember the name of my own (anti-aging) face cream.

One of the worst offenders is The Proposal, which boasts a cast including Sandra Bullock, Ryan Reynolds, and Betty White.  What was the most unbelievable part of this movie?  The fact that I have now seen it twice, having apparently developed amnesia after the first go-round.  In this flick, Sandra Bullock’s character forces her assistant, who has dubbed her “Satan’s Mistress,” to marry her to avoid being deported after the application to renew her visa is denied. 

Let’s pretend for a moment that denial of the extension petition would cause deportation proceedings to begin right away (as The Proposal suggests).  What happens next is extraordinary:  the new couple (formed moments before) walks into the local USCIS office, cuts to the front of the line, and asks to file a fiancée visa petition.  It’s not possible to just walk into the USCIS office (you have to have an appointment, and you have to go through security, and then you have to wait, and wait, and wait).  It’s also kinda difficult (read: pretty much impossible) to file a fiancée visa petition while you’re in the U.S., and even more difficult to file pretty much anything in person. 

The two are immediately granted an interview with a USCIS officer.  [Objection!  Objection!  Objection!]  From there, the movie is similar to Green Card, in that the main characters fall for one another (though in this movie, the development of these new feelings is harder to believe than in Green Card).  Their newfound love develops after flying from NYC to Alaska, and the USCIS officer who interviewed them follows them and attends their (impromptu) wedding.  Ah, yes – that’s how it’s done.  (Cough.)  I’ll try not to ruin the end for anyone who still wants to see it after this glowing review, but I will say that the magic solution here is even more unbelievable than in Green Card; at least in Green Card, the guy gets deported.

The Terminal is underrated; I like this one.  And the whole premise seemed unrealistic until the past month.  A man (Tom Hanks) boards a plane to the U.S. and, while in flight, a coup in his country results in revocation of his visa and voids his passport, making it impossible for him to enter the U.S. or return to his home country.  Tom Hanks’s character ends up living in the international terminal at JFK.  Fantasy?  Well, sure, immigration officials don’t usually just let you wander out of customs  if you’re not admissible to the U.S., and security might typically take issue if you start ripping things out of electrical panels, or maybe keep you from living in part of the terminal that is under construction.  But I certainly hope that Edward Snowden studied this film before hopping a plane to Russia. 

Much could be said about the episodes at the end of the first season and beginning of the second season of Will and Grace, in which Jack (Sean Hayes) marries Karen’s housekeeper, Rosario (Shelley Morrison) to avoid her deportation.  And about Crossing Over, a movie starring Harrison Ford that includes Ray Liotta as a corrupt immigration officer who arranges to trade a green card for sex but (see a pattern?) falls for the woman in the process.  

One movie that seems to get it right is The Visitor.  If you haven’t seen it, you should.  A professor (Richard Jenkins) who keeps, but apparently rarely uses, an apartment in NYC comes into the city to find the apartment occupied by a couple who have rented it from some sort of con man.  He decides to share the space with them rather than evict them.  Once you accept that, the rest of the movie is pretty faithful to the immigration system, as one half of the couple is arrested, then detained by immigration, at which point he more-or-less disappears into the system, being moved from one facility to another without warning, then deported without notice to his family.  This is a lovely, quiet movie about the emotional toll that the system can take. 

But The Visitor is the exception to the rule, which seems to be that movies and TV shows must use immigration law badly and only as a device or an obstacle.  

Why do TV shows and movies do this?  It could be because the writers don’t know better and no one thinks to ask an attorney (or someone who has actually won the green card lottery), but it’s probably because it is rare for real immigration law to translate into good entertainment:  it’s slow, and it’s technical.  Winning the green card lottery means winning a chance to apply for a green card; the whole process can take more than a year.  When the government suspects marriage fraud, it usually starts by requesting piles of documents and conducting an interview; again, we are talking about months and years here, not weeks.  And the government doesn’t care if the relationship has grown into a “real” marriage; the question is whether the marriage was entered into for the purpose of fraud.   

The show Army Wives had a plot line a couple of years ago that mirrored a case that I was handling.  Army Wives did a better job than most of showing how immigration law works, but it had to gloss over some of the technicalities.  I talked to an immigration attorney who had consulted with Army Wives on the technical aspects of the law, and she confirmed that the show had to cut things because (1) it would take too long to show how things actually work, (2) most people wouldn’t understand it, and (3) to make people like me feel like attorneys when we watch.  Okay, I added that last one.

Real immigration law seems so poorly suited for entertainment that I couldn’t even bring myself to write a whole blog post about immigration law, asking Angelo if I could write a “junk food” version about TV and getting old.  Don’t get me wrong; I love immigration law.  I love talking about it.  I have a blast presenting I-9 training (with or without puppets).  But as much as I’d love to star (or even have a bit part) on a TV show, chances are, no one is going to make one about my job any time soon. 

And as I have gotten older, I’ve found that most people aren’t dying to hire an attorney who feels important or loves carrying a briefcase.  Most don’t want me to yell “Objection!” in court, because they’d prefer to stay out of court.  I haven’t yet had a client ask me to make or use puppets, but I have a feeling that training will be more entertaining if it is presented by a furry blue woman with googly eyes.  Instead of real (or real-ish) characters’ lives being changed by fake immigration law, I’ll use outlandish characters and apply real immigration law.  How about a mash-up of Alf, E.T., and the LGMs from Toy Story as a new, literally green employee (who may or may not try to eat the cat)?  That would give a different meaning to the box on the I-9 that says “alien authorized to work” and create opportunities to train about non-discrimination.

Everyone likes a little fantasy.  And where immigration law is concerned, fantasy is a key ingredient if you’re trying to create entertainment. 

Maybe I hold onto my own fantasy about using puppets in my training to fight the stereotypes (learned from TV and movies) about “important” attorneys and their briefcases.  Maybe it is because I am not old.  But I have to admit that when my teenage stepdaughter teared up last night at the end of The Proposal because it was “just so romantic,” I sure didn’t feel young.
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The New I-9: Why Now When We Need Immigration Amnesty for Employers?

3/10/2013

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Angelo Paparelli, ABIL Immediate Past President and Nicole Kersey
Nation of Immigrators
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Irony was plentiful last week in Washington and around the country. 

One particularly hawkish Republican, Senate Minority Leader Mitch McConnell (who never met a war-on-terror strategy he disliked), glommed onto Senator Rand Paul's filibustery droning against drones in protest of John Brennan's nomination as new CIA director. 

Also last week President Obama met with religious leaders to promote "Commonsense [sic] Immigration Reform" as the "leaders expressed their concerns over the impact the broken immigration system is having on families throughout their congregations" -- especially the ongoing deportation of persons eligible for legalization under comprehensive immigration reform (CIR).  

At about the same time, Jeb Bush, former Florida governor, out touting his new book Immigration Wars: Forging an American Solution, "aimed at conservatives who might have a hard time embracing the increasingly important path-to-citizenship," is accused of flip-flopping on immigration.

Last week also witnessed the release of two noteworthy publications on immigration.  

One, a long read in the National Journal exploring immigration-law dysfunction and irony in the restaurant industry, asked the rhetorically ironic question: “When did business owners become the bad guys of the Republican Party?” The article does a good job of describing our ironic process for verifying employment eligibility:

Restaurant owners will say, when asked, that they don’t hire illegal immigrants. They also say they don’t know of anyone on their staff who is illegal. They are very likely telling the truth. Employers aren’t allowed to ask about a prospective employee’s country of origin—that would be discriminatory. They are simply required to keep copies of a new hire’s identification on file with an I-9 form, a dizzyingly bureaucratic document that generally does nothing but collect dust. A new employee can offer up many types of documents for the I-9, some of them archaic. Simple mistakes are made. The lunch rush may be starting. And document forgery is big business. (Emphasis added.)
The other piece is a Forbes op-ed with the ironic assertion that giving amnesty to the undocumented is insufficient and that our government also owes them an apology.

All this ironic behavior foreshadowed a bombshell of irony, a veritable immigration drone dropped on all American employers and newly hired employees, the release on March 8 of a new Form I-9 (Employment-Verification-Eligibility) by U.S. Citizenship and Immigration Services (USCIS).  The agency projects that the new I-9 -- consisting of seven pages of instructions to complete two pages of the form itself (up from the current one-page form) -- will impose an annual compliance burden of $1.2 billion on businesses and workers, not to mention a yearly cost to the federal government of $11.5 million. 

Why now?

With the government straitened by sequester and the prospect for CIR never better, why did USCIS choose last week to drop the I-9 bombshell on business and labor?

CIR could well involve the mandatory nationwide rollout of E-Verify and the elimination of the redundant I-9 verification process. Just as faith leaders, with CIR imminent, are calling for a nationwide moratorium on deportations, the business community and immigration advocates for the undocumented should protest the introduction of a costly new procedure that will only cause the "silent raids" and game of gotcha to continue and may well prove unnecessary.   Notwithstanding the government's unpersuasive reasons for changing Form I-9, noted below, the timing, charitably speaking, is ironic.

Why did the form change?

The government has indicated (see #55 of the Appendix to Form I-9, Supporting Statement, available here) that the form was changed because:

-          The old form “expired.”

-          The expiration gave USCIS an opportunity to implement improvements to the form.

-          Improvements (according to USCIS) include:

-          Adding “helpful” fields such as the employee e-mail address and telephone number

-          Revising Section 1 to make it “easier to read and understand”

-          Adding an area for a 3D barcode to “promote the modernization of USCIS forms”

-          Giving employers more space

-          Making the instructions clearer and easier to understand

Whether this was truly the most opportune time to make changes to the form is highly questionable.  Given that any CIR bill passing this year is likely to include changes to the rules employers must follow when verifying employment eligibility, it is inexplicable for USCIS to have revised the I-9 now.  Changes to employment verification in all versions of CIR would inevitably result in the need for a new form or no form at all (just E-Verify with a fraud-proof employee ID card that all workers, including citizens, must present): so why not simply re-publish the same form with a new expiration date?  USCIS doesn't say.

Did USCIS adequately respond to public comments?

Digging around at www.regulations.gov (type in Docket ID USCIS-2006-0068 to find all of the documents and comments related to the new form) leads to a 30+ page document in which the government responds to public comments.  While this suggests that USCIS actually read the comments, the agency's response confirms that little serious consideration was given to the many comments proposing meaningful improvements to the form.  The majority of suggestions that USCIS implemented are minor and mostly stylistic, but still important and burdensome to implement. (See, e.g., the comments of ABIL, the Alliance of Business Immigration Lawyers, which like those of so many others the agency largely ignored.) 

What changed?

The new I-9 form is so much more complex that the government anticipates a 21-minute increase in the amount of time it will take to complete. See pages 8-9 of this document. As noted, the form is now two pages long, with seven pages of instructions.  The List of Acceptable Documents still occupies a single page.   Aside from formatting and stylistic changes, there are also substantive changes:

  • The instructions are significantly more detailed, including a number of “clarifying” items to help employers avoid mistakes.  
    • Instructions indicating that border commuters from Canada and Mexico may use foreign addresses in Section 1 (but that all other employees must use U.S. addresses).
    • Confirmation that P.O. Boxes are not acceptable.
    • A statement that the SSN (for employers who do not use E-Verify), e-mail, and telephone number fields, are optional.
    • Instructions regarding which foreign nationals must provide passport information in Section 1 (see below).
    • The addition of instructions for minors and disabled employees.
    • In-depth instructions relating to the use of receipts for lost, stolen, and damaged documents.
    • More detailed instructions relating to deadlines for form completion, review and recordation of document information, reverification, and photocopying documents.
    • The form has been updated to look more “official” and to include the DHS seal; this, in combination with certain formatting changes, may help employees take the form more seriously, giving them a better understanding that this is an official government form that is being signed under penalty of perjury.
    • New fields have been added for employees to record telephone numbers and e-mail addresses.  These fields are optional.  The government has indicated that many commenters praised the addition of these fields and that they may make it easier to contact employees in the event of E-Verify tentative nonconfirmations.
    • Terminology has changed in an attempt to make the form more user-friendly, reflect a better understanding of cultural norms (“Family Name”), and to make fields more gender-neutral (“Other Names Used” instead of Maiden Name). 
    • Fields have been added for certain foreign nationals to provide passport information in Section 1 of the form.  This relates to CBP’s plans for automation of the I-94 card.  Only those foreign nationals who obtained their I-94 documents upon entry to the U.S. (as opposed to having received a tear-off I-94 card as a part of a USCIS approval notice) should provide this data.  Others are instructed to write “N/A” in these fields.
    • The signature box for the employee has been improved to prevent employees from signing outside of the box.
    • In most cases, the instructions indicate that fields that do not apply to an employee (or where employees choose not to provide optional information) should be marked “N/A.”  While the government may find such instructions helpful, they actually create more opportunities for employers to find themselves making “mistakes” and worrying about possible fines for noncompliance with seemingly arbitrary rules.
    • “Alien #” has been changed to “Alien Registration Number/USCIS Number.”  For many, this causes confusion.  Let us make it clear:  the numbers are the same, but some government-issued documents use different terms to refer to the same number.
    • A 3D barcode box has been added to the form.  This is a mysterious box, as it is unclear what the government plans to do with it.  All indications suggest that the government may create a “smart” I-9 that employers can complete electronically, and that the barcode may allow for electronic reading of the form data.
    • A stop sign (yes, like the traffic sign) has been added between Section 1 and Section 2 to help prevent employees from completing Section 2 of the form.
    • Additional dedicated fields for recording “extra” List A documents have been added.  These fields may prove helpful to employers who previously struggled with the correct ways to document work authorization for foreign students, certain aliens authorized to work, and lawful permanent residents who have not yet received their green cards.  They may cause confusion, however, for others.  It is still not clear which document should be recorded first, second, or third.
    • The employer’s attestation statement has been changed somewhat.  It makes clearer to employers that they are not necessarily attesting to the employee’s start date (which is helpful when an employee is scheduled to start work in the future, preventing employers from concerns about attesting to something that has not yet occurred).
    • Section 3 has been changed to “Section 3, Reverification and Rehires” to make clear that there is no requirement that employers update the form for employee name changes.  Recording name changes may continue to be a best practice, but only if handled in such a way as to prevent document abuse claims (requesting documentation for I-9 purposes in connection with a name change may be risky).
    • The Lists of Acceptable Documents have been updated to make the rules regarding “restricted” Social Security cards clearer, specifically stating that employers must not accept cards that say “not  valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”
What should employers do?

USCIS has indicated that employers should begin using the new form immediately but has allowed a period of 60 days for employers to make the business-related adjustments necessary to begin use of the new form, effectively providing a grace period.

With that somewhat clunky guidance, we suggest that employers do the following:

Consider waiting to use the new form until you take time to:

  • Read and digest the revised M-274 Handbook for Employers, available here. 
  • Update your company policies and protocols to reflect changes to the form.
  • Provide training (preferably from a competent immigration attorney) to the individuals responsible for completing the form to ensure that they are aware of the changes and are equipped to properly implement them. 
  • Anticipate questions and issues that may arise.
  • Be ready to fix the foreseeable mistakes that are likely to arise.
  • Check with your electronic I-9 software provider (assuming you no longer use paper I-9s) to see that the new form is available, and ask your immigration attorney to review the new form in a test environment to ensure that it complies with all of the relevant rules and regulations.
* * *
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Sen. John McCain, whose somersaults on immigration are just as nimble and ironic as those of Jeb Bush, chastised Sen. Paul's filibuster, calling it a "political stunt" meant to "fire up impressionable libertarian kids in their college dorms." No one, however, can really say what USCIS, in its bureaucratic wisdom, meant to accomplish in dropping the new I-9, an even more dizzying and ditzy document than the current form.   Perhaps, Sen. McCain will persuade his "Gang of Eight" compadres to rescue U.S. employers with an immigration amnesty on I-9 paperwork violations. Meantime, unimpressionable, all too jaundiced employers and their immigration lawyers, stoked by the new I-9, will muddle through the IRCA squeeze until Congress drops the irony and acts responsibly on CIR.


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The I-9 Audit Process is a Game -- Alas, it is Football, not Soccer

1/27/2013

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
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[Blogger's note:  Today's guest column is by my colleague at Seyfarth Shaw, John Quill. Three abiding passions animate John -- love of family, sports (hockey in particular) and immigration law.  His passion for sports and frustration with U.S. immigration law's employer-sanctions enforcement regime combine today to bring us this insightful and wistful post.]

The I-9 Audit Process is a Game -- Alas, it is Football, not Soccer By John Quill
My favorite professor in law school, Bill Pizzi, taught criminal law and criminal procedure.  During my “recent” tenure as a law student, Professor Pizzi wrote an article comparing the U.S. criminal trial system to American football -- rife with arcane rules that penalize the most well-intending participants.  In contrast, wrote professor Pizzi, the European criminal trial system more closely mimics soccer (or "Football" to the rest of the world), in that there are fewer rules, the pace continues with fewer penalties and interruptions, and a general principle of maintaining flow of the game prevails.  (Professor Pizzi’s article became the first chapter of his book, Trials without Truth.)

Two recent events served to jog my memory on Professor Pizzi’s theory of criminal trial systems. 
  • First, my daughter and I decided to choose a Premier League team to root for, as soccer is her first love and she wanted to adopt  a team in one of the top professional leagues. (After a highly analytical process, we chose Tottenham Hotspur as our team.  The main criteria included their London home, and the fact that, “they have a cool name.”)  
  • Second, I recently completed another I-9 audit process for a client employer, and was reunited with the joys of engaging with U.S. Immigration and Customs Enforcement (ICE) and the game of “gotcha” that prevails throughout this process.
Watching soccer played at its highest level has given me an appreciation for why it is called “the Beautiful Game.”  The sport offers a near-continuous flow, with supreme athleticism on constant display.  The rules seem to serve more as guidelines, and the officials do not interrupt the action to measure the exact spot where a penalty took place, or use a small army of officials to maintain military-like precision on the field.  Rather than lengthy explanations for transgressions, a simple system of yellow and red cards informs viewers, regardless of language barriers, of the severity of the foul that was committed.  An offsides player is flagged by the assistant official, but play is only stopped if that player gains an advantage.  Otherwise, no foul is called and play carries on uninterrupted.

Contrast soccer with American football.  According to a Wall Street Journal article,  American football offers roughly 11 minutes of actual game action, in a three hour time span and 60 minutes of game clock time.  The remaining time is filled either with commercial timeouts, player huddles, referee conferences, precise ball placement after each play, or players lining up in a formation that resembles the 87th Regiment, 10th Division of the U.S. Army.  

Moreover, the National Football League’s rulebook, available for all to peruse on the league’s website, runs some 120 pages of intricate detail.  In addition to the collection of Byzantine rules, the rulebook contains a definition of “illegal.”  Professional football players should be assured that committing the penalty of “illegal formation,” according to the rulebook, “is not meant to connote illegality under any public law or the rules or regulations of any other organization.”  (Presumably this means that the 11 players responsible for the illegal formation are also not subject to prosecution for conspiracy to commit an illegal act.)  Teams can be penalized for failure to place the proper number of players on the line of scrimmage, or for having too many players in the team huddle prior to the commencement of play.  

This brings us to the I-9 audit process.  ICE is charged with conducting I-9 audits and sanctioning employers who violate the process.  Regular readers of NationOfImmigrators.com are familiar with the draconian Form I-9 audit system of employment-eligibility verification, featuring complex regulations and ICE’s punitive enforcement policies.  

The presentation of I-9 compliance offered by U.S. Citizenship and Immigration Services (USCIS) creates the illusion of a noble process where employer compliance is simple.  According to the USCIS's I-9 Handbook for Employers, “Form I-9 helps employers to verify individuals who are authorized to work in the United States.” The USCIS Office of Business Liaison has published a document, “The I-9 Process in a Nutshell,” which states, “IRCA’s (the Immigration Reform and Control Act's) core prohibition is against the hiring or continued employment of aliens whom employers know are unauthorized to work in the United States.”

The vision of IRCA as enacted in 1986 has evolved to its current form, a complex system where ICE’s main goal appears to be to comb through I-9 forms and find paperwork errors which have no bearing on whether or not an employee’s identity and work authorization were verified.  These errors do not increase compliance with the goals of IRCA; rather, they allow the agency to penalize well-intentioned employers with substantial, sometimes crippling fines.  Picture a football field filled with seven referees, each gazing at the players on the field and ready to throw a flag to penalize a foul found somewhere within its 120-page rulebook.

Soccer and football (as well as football’s distant cousin, rugby), are commonly thought to have all descended from the same simple, noble Greek game called Harpastum.  However, as each sport evolved, football became reliant on precision and rules, while soccer stayed simple (and “beautiful,” according to the rest of the world). 

ICE’s I-9 audit procedure has taken a similar divergence from its original goals.  Emboldened by the Obama Administration’s April 2009 directive that it would increase worksite enforcement, ICE has created a back office, whose agents are tasked solely with scrutinizing each I-9 form completed by an employer, with the purpose of finding errors small or large which can be used to ratchet up fines against an employer, regardless of an employer’s general level of compliance and good faith.  

ICE will fine an employer for the following, NFL rulebook-style transgressions: Signing the I-9 form in Section 3 rather than in Section 2; failing to ensure that a permanent resident employee filled in his or her Alien number in Section 1, even when the same Alien number appears in List A in Section 2; failing to write the full address of the worksite in Section 2; and listing identity and employment authorization data in the wrong section of the form.

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None of these violations has any bearing on whether the employer verified the employee’s documentation of identity and employment authorization.  Rather, these are just a few instances of the more than a hundred ways where an employer can make a potentially costly mistake in completing an I-9 form.  This type of cat-and-mouse game does nothing to further the main goals of IRCA, and only serves to tie up employer resources at a time when our economy desperately needs increased productivity; results in millions of dollars in needless fines; and prevents ICE resources from finding the true bad actors who exploit unauthorized aliens.   Perhaps it is unrealistic to expect ICE to turn the I-9 audit process into a “beautiful game” of continuous flow until a harmful penalty is committed. Still, I invite ICE auditors, their attorneys and higher-ups in the agency to watch Manchester City play Arsenal, or Real Madrid face off against Valencia, and apply some of the lessons in play to their own game.


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Guest Blog: All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist

12/24/2012

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Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators
[Blogger's Note:  Today's post brings a bit of holiday cheer from my colleague and I-9 expert, Nicole ("Nici") Kersey.  I want to publicly thank her for allowing me a Christmas break from blogging, and for the delicious chocolates.
All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist
By Nicole Kersey
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I was recently asked to provide a single tip/piece of I-9/E-Verify advice for employers as part of a holiday-themed post for another blog.  I was happy to do it, but I felt like a kid sitting on Santa’s lap being told that I could only ask for one gift.  If you’ve ever been in my closet, well, that’s creepy.  But you would know, from the fact that I buy the same shirt in 3 different colors, that I am not good at choosing just one of anything.    

So when Angelo Paparelli asked whether I might give him the gift of a week off from blogging (he didn’t know I’d already sent him chocolates), I first wrote a lengthy piece about the day that I accidentally shaved off my eyebrow (then drew it back on with purple eyeliner), but I couldn’t find a way to make the story relate to immigration.   Then I realized I was in that rare “wishing for more wishes situation.”  I guess that makes Angelo the genie.  Or Santa?  I’ve mixed metaphors again.  D’oh!  (Dough?)  I guess we will be leaving metaphorical cookies out for Santa this Christmas Eve.  (Smart cookie, tough cookie … I plan to milk this for all it’s worth.)

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So my holiday gift to you:  Ten of my greatest tips for avoiding liability for immigration-related violations.  [Yes, I know it is one of the worst Christmas gifts ever, but I’m not rolling in dough, so that’s the way the cookie crumbles.  And if you are my 2-year-old daughter and have suddenly developed the ability to read, do not fear (you smart cookie, you)!  I splurged on something a little more fun for you.]

  1. Provide mandatory annual I-9 training to everyone involved in the I-9 process.  This is the least expensive and most effective way to limit liability.  Invest in good training by an attorney with I-9 expertise.  See here for more.  
  2. Don’t make the mistake of assuming that, because you know you don’t employ any unauthorized workers, you don’t face much risk in the event of an ICE inspection.  I have handled cases in which ICE found zero unauthorized workers and imposed crippling fines for paperwork violations.  I’ve also handled cases in which more than half of the workforce was found to be unauthorized, and no penalties were imposed.
  3. Do not assume that your I-9s are perfect.  In my experience, the employer with perfect I-9s is a myth.  In all likelihood, you have some I-9 errors in your (actual or virtual) filing cabinet.  The key is finding out how much risk you face then doing a cost-benefit analysis to determine the appropriate level of remediation.
  4. Make sure you have a strong immigration compliance policy in place, that the policy reflects your corporate culture (a cookie-cutter policy is better than nothing, but the best policy is one that requires compliance and works for you), and that the policy is reflected in your culture (read:  actually follow it).  Ensure that team members are given responsibility for relevant aspects of the compliance policy and that their annual review process includes consequences for ensuring compliance (or for failure to do so).  In the event of an ICE inspection, ICE may ask to see a copy of your policy.  Having a good policy in place may help you to prove that any mistakes could be attributed to a “rogue” manager (and may thus help you avoid liability).  
  5. In addition to a compliance policy, develop an investigation response protocol.  This ensures that all team members know what to do & who to call (other than Ghostbusters) in the event of an ICE inspection or other immigration-related government site visit.  For more, see here.   Also consider sending Angelo a copy of Ghostbusters for Christmas [Editor's Note:  Please don't!]; rumor has it, he has never seen this snickerdoodle of a film.  
  6. Talk to an attorney to do a quick review of your operations to ensure that you are in compliance will the relevant E-Verify laws. Do not assume that, because you haven’t heard anything about a law affecting you, you aren’t required to use E-Verify.  A number of E-Verify laws, rules, and regulations have taken effect in more than a dozen states, and depending on the language of the law and the number of employees you have, you may risk losing your business license if you fail to use E-Verify.  
  7. If you’re not required to use E-Verify, consider using it anyway.  There are serious pros and cons to consider, but you get brownie points (yeah, yeah, I know they’re not cookies, but they are relatives, and Christmas is all about family, right?) with ICE for using it, and if you have any paperwork errors lurking in your I-9 filing cabinet (see #3:  you do), using E-Verify may help you avoid fines.  
  8. If you are involved in a merger, acquisition, or other corporate reorganization, raise immigration issues early.  Ask me for a due diligence checklist.  I-9 liability can affect price and even kill a deal.  If one of the companies involved in the transaction uses an electronic I-9 software program, the fate of the electronic I-9s must be determined early (will the newly formed company keep the electronic I-9s, use the same software?).   “Regular” immigration issues should also be discussed.  To the extent that employees are working under employer-sponsored visas or are in the middle of an employment-based green card application process, the employers must determine what (if any) paperwork must be filed (and when) to ensure that the employees do not lose their work authorization.
  9. Don’t be “e-terrified,” but be cautious. Electronic I-9s and E-Verify can improve compliance, but a flawed electronic system can create greater risk than flawed paper I-9s. Understand that the process of “going electronic” may be a time-consuming task. If you do it right, it will be worth the time and effort.  See this article for more details.  
  10. Watch this video.  It is about cookies.  It has nothing to do with immigration.  (Well, that’s not entirely true.  Frank Oz (voice of Cookie Monster) was born in England and immigrated to the U.S. when he was 5 years old.)  Unless you are the Grinch or a close relative, it will make you smile.  And “smile and be nice” = some of the best legal advice I’ve ever heard.
Merry Christmas!
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