On June 15, 2012, President Obama signed a memo calling for deferred action for certain undocumented young people who came to the U.S. as children and have pursued education or military service here. Applications under the program which is called Deferred Action for Childhood Arrivals (“DACA”) began on August 15, 2012. Individuals that meet particular criteria, are awarded employment authorization (a/k/a an “EAD Card”) by USCIS.

USCIS does not alert employers when EAD cards have been issued to existing employees, and the employee is under no obligation to present the document to the employer. However, should they do so, the employer is obligated to examine the document. 

The Attached Fact Sheet identifies the employer’s obligations during the Form I-9 process and provides specific guidance to employers on the treatment of EADs issued by USCIS to DACA recipients, whether they be current employees who come forward on their own, or new hires.

Note that DACA guidance does not direct employers to perform E-Verify queries on current employees who present DACA work authorization.  Rather, it states that employers should complete a new Form I-9 and perform an E-Verify query in certain situations involving material changes to identity information.  More on this topic can be found in the new M-274 Handbook on pages 23-24.

Should you like to become a client of our office or have particular questions pertaining to this topic, please feel free to contact us.

The Senate’s immigration bill takes us a small step closer to a less punitive and more open immigration policy. It legalizes most of the unlawful immigrants here and provides pathways for legal immigration in the future. It’s not a perfect bill – there are flaws such as the $46 billion border surge that just about militarizes the border with technology and fencing (the passing of the  Hoeven-Corker amendment), and mandatory E-Verify for all employers – the result of the political tug-of-war surrounding immigration reform and the “poison pill” that had to be added to attract sufficient Republican votes to pass the bill.

The good news is that it’s a huge “win” on many fronts – to name a few:

1. Path to citizenship for vast majority of the 11 million!!!
2. While in RPI status, immigrants can work, travel and live without fear of deportation
3. Reunification of many families separated by deportation
4. DREAMers will be considered the same as permanent residents during their RPI period for purposes of qualifying for naturalization, with a 5 year path to citizenship
5. DACA recipients will have RPI status expedited
6. Farm workers will get a ‘blue card’ and will be on a 5 year path to citizenship.  A single application may be submitted for a family.
7. Expedited path for those already here in a temporary status
8. Families that have spent years, even decades waiting for their turn in line will finally be reunited
9. Adds spouses and children under 21 of permanent residents to the immediate relative category
10. Immigrants on the path to citizenship can pay fees in installments
11. New temporary worker programs that protects immigrant workers and American labor force
12. The H-1B cap is increased and will float between 115,000 and 180,000 depending on market conditions. The base cap is 115,000.
13. Spouses of H-1B holders will now be able to work
14. The H-1C visa for nurses working in a health professional shortage area returns but is now just 300 for the entire country. Portability is now available allowing H-1C nurses to move more easily between H-1C employers.
15. Future work-visa holders will be able to self-petition for green cards rather than relying on employers to decide whether they can call America home for good
16. Per country limits for employment-based cases are eliminated
17. EB-1 category will not be counted against quota

The House has announced that it will not take up or vote on the the Senate Bill.  “For any legislation — including the conference report — to pass the House it’s going to have to be a bill that has the support of the majority of our members,” Boehner told reporters last Thursday.  Here is a video of the House Speaker.  As Latino Decisions writes in a new analysis, “The Republican Party is at a crucial crossroads.  If House Republicans stall or block immigration reform that provides a path to citizenship to millions of undocumented immigrants, it will be almost impossible for the party to recover on many fronts and to compete nationally for Latino votes.  We shall see how all this progresses and will continue to keep you well informed.

After considering some 200 amendments to the Gang of 8’s immigration bill entitled the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (a/k/a CIR, or Comprehensive Immigration Reform), it survived the Senate Judiciary Committee overhaul and has been introduced onto the floor of the Senate for further debate taking place this month.  It is the goal of the Senate to complete their work on the Bill by the July 4^th recess. On the weekend talk show circuit, Lindsay Graham (S-SC) told conservatives who are trying to block the measure that they will doom the party.  Sen. Robert Menendez, D-N.J., went a step further and predicted “there will never be a road to the White House for the Republican Party if immigration overhaul fails to pass.”

The big question is – will the House of Representatives cooperate and pass a bill?  The theory on this is that the purpose of the legislative process right now is for the House to get a bill passed. It could be a good or bad bill; it just has to be an intact bill because once something makes it through the House, it will go to conference with the Senate and the Committee will compare the two bills and draft a compromise bill that both chambers can accept

The Temperature on Immigration Reform in the House of Representatives:

While many House conservatives agree immigration reform is a critical priority for Congress, they part with President Obama, Senate Democrats, and some in their own party who believe allowing eventual citizenship to those in the country illegally is part of the solution. They vow that they won’t support any bill that adds to the deficit and they want to see a tougher approach to border security and to the benefits issue.

Not only has the federal government consistently increased spending on border enforcement, it has also met the border-security benchmarks laid down in the three immigration-reform bills introduced in the Senate since 2006. Read more on border security here

The GOP insists that newly legalized workers now working in the shadows have no access to government-sponsored health care during their 15-year pathway to citizenship.  Democrats say that since these newly legalized immigrants would be paying taxes (millions already do pay taxes), they should be eligible for benefits.

In the end, both chambers of Congress must eventually pass the identical legislation for the bill to make its way to the President’s desk to become law.  The question is…Will House Republican leadership pass a bill or fail?

White House Official stated to the Daily Caller, “If a Gang of Eight-style bill is signed into law by the President, it will probably be one of the top five legislative accomplishments in the last twenty years.”

For a Summary of S 744 refer here.  Refer here for more on the progress of S. 744 in the Senate, the text of bill, the summary and the proposed amendments.

The House Judiciary Committee markup of the bill starts this week, and will start with SAFE Act (H.R. 2278), a bill to improve the interior enforcement of our immigration laws and strengthen national security and will then take up the AG Act (H.R. 1773), a bill to provide American farmers with a workable temporary agricultural guest worker program that will help provide access to a reliable workforce.  Read more here

The proposal, which is expected to be officially unveiled this week is titled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

Sens. Chuck Schumer (D-N.Y.) and John McCain (R-Ariz.) — members of the bipartisan group that crafted the bill — will go to the White House today to meet with President Barack Obama about the immigration bill, according to a source familiar with the meeting.

The legislation would have a far-reaching impact on virtually every corner of the American economy.

In other compromises, the bill would reduce the categories of family members eligible for green cards, eliminating siblings of United States citizens and limiting sons and daughters of citizens to those under 31 years of age. It would eliminate a lottery that has distributed 55,000 visas each year. Those visas would be used to reduce backlogs of applicants elsewhere in the system. Republicans have sought to limit what they call family chain migration and to accomplish changes without increasing the overall number of visas.

Undocumented Immigrants

There would be two tracks: one based on the number of points immigrants could accumulate, with a fixed annual numerical cap, and another for immigrants who have been legally employed and living in the United States in good standing for 10 years or more. The second track would not have a cap.  Formerly, undocumented immigrants would be eligible to apply for initial adjustment of status referred to as  “Registered Provision Immigrant” (RPI) legal status following the filing of the Notice of Commencement of Completion by Secretary Napolitano (DHS) for each of the border security and fencing strategies.  Only undocumented immigrants who arrived in the country before Dec. 31, 2011, would be eligible for RPI status.   After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green-card.  They must also wait until all people currently waiting for family and employment green-cards  have been cleared through the system.

The border security programs would be required to evidence a 90% effectiveness rate before any immigrants who have been here illegally would be able to apply for permanent resident green cards, achieving a series of border-security benchmarks that would require the Department of Homeland Security to spend as much as $5.5 billion over 10 years to increase enforcement and extend fencing along the Southwest border.

Undocumented immigrants would be ineligible if they have been convicted of a felony, aggravated felony, three or more misdemeanors, an offense under foreign law or unlawfully voted.

Undocumented immigrants who were deported for non-criminal reasons would be able to apply to re-enter the country if they are the spouse or parent of a child who is a citizen or lawful permanent resident, or they arrived during childhood and are eligible for the DREAM Act.  People in DREAM Act Status and the Agricultural Program can obtain their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards.

High Skilled Visas

The legislation would give employers in technology and science fields tens of thousands of new temporary and permanent resident visas annually, which they have been urgently seeking for tech workers and foreign graduates with advanced degrees from American universities. It immediately raises current annual caps on temporary high-skilled visas, such as H-1Bs, to 110,000 from 65,000, while adding 5,000 more of those visas for the foreign graduates. The cap would gradually rise to 180,000 annually.

Start-Up Visa

The legislation would create a “start-up” visa for foreign entrepreneurs who want to come here to establish companies that employ Americans.

Two New Guest Worker Programs

The bill also responds to the demands of American farmers and other employers of seasonal workers by creating two new guest-worker programs, one for farmworkers and another for low-wage laborers.

One major overhaul is the new classification for low-skilled workers. Called the W-visa, a new independent statistical agency is created — the Immigration and Labor Market Research Bureau — which is to be headed by a commissioner appointed by the president and with the consent of the Senate. The new bureau would get $20 million to devise a method to calculate the low-skilled worker visa cap, determine worker shortages, survey the unemployment rate of construction workers every three months and give annual recommendations on how to improve the programs. Employer fees and other fees for hiring undocumented workers will also be used to fund the bureau.

The number of low-skilled visas available starts at 20,000 in its first year, followed by 35,000 in the second, 55,000 in the third year and 75,000 the following year. Employers must hire W-visa holders at the same wage of other employees of similar experience, or at the prevailing wage. The bill also requires that companies have not laid off an employee 90 days prior to or after hiring a guest worker.

The program also singles out the construction industry, saying no more than 33 percent of the W-visa positions would be granted to the construction industry, capping it at 15,000 per year.

Mandatory Employer Verification System

A significant change for employers would be a mandatory employer verification system to check the immigration status of their employees. With a five-year phase-in period based on size of the business, employers would be required to certify that non-citizen workers presented a “biometric green card” that matches a photo stored in an e-verify system.

Highlights Regarding Legal Immigration

The bill repeals the availability of immigrant visas for siblings of U.S. citizens once 18 months have elapsed since the date of enactment;  amends the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence; amends the existing category for married sons and daughters of citizens of the United States to include only sons and daughters who are under 31 years of age.

For Employment Green-Card Categories:  The bill exempts the following categories from the annual numerical limits on employment-based immigrants: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians.

The bill will allocate 40 percent of the worldwide level of employment-based visas to :

1) members of the professions holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees) and

2) aliens who have earned a master’s degree or higher in a field of science, technology, engineering or mathematics from an accredited U.S. institution of higher education and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed.

The bill increases the percentage of employment visas for skilled workers, professionals, and other professionals to 40 percent; maintains the percentage of employment visas for certain special immigrants to 10 percent and maintains visas for those who foster employment creation to 10 percent.

For more on the bill, please refer to the 17-page Senate Outline referenced below.

In closing, the NY Times states:

“The senators are gambling that the bill will repair enough longstanding problems in the system to attract support from a broad array of groups who will benefit from those changes, including Latinos, religious groups and labor unions who support the path to citizenship for those here illegally; big technology companies like Microsoft and Facebook, which have been clamoring for more visas for engineers and computer specialists; agricultural growers and other employers in labor-intensive businesses; and immigrant families who stand to be united more quickly with family members coming here legally.”

Article Resources:

Outline of the Bill

Politico

NY Times

The National Immigration Law Center released this week FAQ’s concerning worksite rights for DACA employees.  The information is very helpful for those who are applying for DACA and for those who have been granted deferred action under the DACA Program.  There is also some excellent guidance for employers concerning the I-9 form for DACA new and existing employees, social security cards, employment verification letters, and more.  We also link to a previous blog post with updated FAQ information on the USCIS website.

Please be aware that this is ‘general’ information only.  We always recommend that you seek guidance from a skilled immigration attorney or professional who is familiar with DACA and employer compliance issues.  As always, we are available to work with you on your casework and to assist employers with employment eligibility verification issues.  Please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996 and visit our I-9 Employer Resource Center.

The Social Security Administration has released an informative brochure for DACA applicants who will be applying for social security cards.  After you receive your Employment Authorization Card (I-766) from USCIS, you can apply for a Social Security number.  You must show one of the following original documents or a certified copy to evidence age and identity:

• Foreign Birth Certificate
• Foreign Passport
• US military record
• US military identification card
• Religious record showing age or date of birth
• US driver’s license
• US state-issued identification card
• School record showing age or date of birth
• School identification card; or
• Copy of medical record

Please note, while you may have provided photocopies of the above documents to USCIS, Social Security requires original documents or copies certified by the agency that issued them. They cannot accept photocopies or notarized copies. They must independently verify the documentation you provide.  For more information, visit www.socialsecurity.gov or call toll-free, 1-800-772-1213.

For questions concerning DACA, please contact our office at 562 612.3996 or email:  info@immigrationcompliancegroup.com.

By:  Timothy Sutton, Communications Editor

After two years of being deadlocked in the court system, the injunction preventing Arizona’s police force from enforcing the racially controversial “papers please,” program was lifted Wednesday by U.S. District Court Judge Susan Bolton. The decision is the latest legal move in Valle del Sol v. Whiting, a class action legal challenge to SB 1070 that was filed in May 2010. Plaintiffs include an Arizona-born citizen of Spanish and Chinese descent who was racially profiled.  “While today’s ruling puts civil rights at risk, it does nothing to undermine our resolve to continue fighting until SB 1070 is struck down in its entirety,” said Chris Newman, legal director of the National Day Laborer Organizing Network. The Supreme Court upheld SB 1070 2(b), also known as the “papers please,” provision, earlier this summer. However, Justice Kennedy suggested there would be clear constitutional problems if the law were used to target racial or ethnic minorities, or to detain people for an unreasonable period of time while checking their immigration status. Opponents assert this unwanted outcome of targeting minorities is certain to transpire.

However, Governor Jan Brewer insists that the “papers please,” law does not allow Arizona law enforcement to conduct pretext stops because it requires reasonable suspicion. In a public statement she claimed Wednesday’s District Court ruling is “one big step closer to implementing the core provision of SB 1070.” That provision? Ridding Arizona of illegal immigrants.

Arizona’s highly controversial Maricopa County Sheriff Joe Arpaio was also been quoted on the Glenn Beck Show, clarifying his interpretation of reasonable suspicion, “If they have their speech, what they look like, if they look like they come from another country, we can take care of that situation.” As Brewer and Arpaio ramp up for the certain increase in detainment leading to deportation both Cecilia Wong of the ACLU and Victor Viramontes of MALDEF have committed to continue the fight against SB 1070.

It won’t be long before SB 1070 2(b) is back in the courthouse being challenged for racial profiling and discrimination based upon national origin. We will keep you updated on those and other immigration related breaking news as it develops. For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

This employer really crossed the line in continuing to employ unauthorized workers AFTER an ICE audit of their I-9 records commenced, and failed to produce I-9 records for them on 3 previous occasions while transferring them to other jobsite locations.

Here’s the story….  The charges against the owner and Production Manager, Yoel A. Wazana, Wazana Brothers International, Inc., based in Van Nuys, CA, doing business under the name Micro Solutions Enterprises (MSE), are the result of an investigation into MSE’s hiring practices that was initiated by HSI in 2007. According to court documents, shortly after MSE received notification in April 2007 that HSI planned to audit the company’s payroll and hiring records, Wazana directed that about 80 of MSE’s most experienced employees – at least 53 of whom did not have work authorization – be relocated to another manufacturing facility. When investigators requested hiring records from MSE on three separate occasions, the company failed to provide paperwork for those unauthorized workers. The plea agreements filed in this case also describe how, after learning of the ICE audit, Wazana conducted meetings with MSE’s assembly line workers, instructing them to obtain valid work authorization documents and return with those documents, suggesting that he did not care if the documents were actually theirs.

In February 2008, HSI special agents executed a search warrant at MSE’s Van Nuys plant. During the enforcement operation, special agents arrested eight current and former company workers on criminal charges and another 130 employees on administrative immigration violations.  The felony charge of false representation of a Social Security number carries a maximum penalty of five years in prison and a $250,000 fine.

MSE has agreed to plead guilty to one misdemeanor count of continuing employment of unauthorized aliens. In a plea agreement filed last month, the firm admits hiring approximately 55 unauthorized workers, and then continuing to employ them after the ICE audit had begun. The company admits that it knew, or deliberately avoided knowledge of the fact, that the individuals were not authorized to work in the United States.

The company’s plea agreement represents a global settlement of criminal and civil charges against the firm. Under the terms of the plea agreement negotiated by ICE and the United States Attorney’s Office, MSE agreed to pay approximately $267,000 in civil and criminal fines.

Beyond the monetary sanctions, the plea agreement calls for the company to be on probation for three years, during which time it will implement a series of stringent measures to ensure it is complying with the nation’s hiring laws. Those steps include retaining an independent compliance monitor (this is the first time we’ve heard of an ‘independent compliance monitor’ being mentioned) to oversee the completion and maintenance of the firm’s hiring records, and providing training to employees regarding federal hiring laws. The plea agreement takes into account the company’s willingness to take responsibility for its prior criminal conduct and to implement a rigorous program to ensure full compliance with federal hiring laws in the future.

In 2009, HSI implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, HSI is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. In the last year, HSI has levied a record number of civil and criminal penalties against employers who violate immigration laws.

An employer’s blatant disregard for employment-related immigration law has been proven time and time again in our blog reporting of these cases to be an expensive, painful, reputation damaging and unnecessary path.  Call our office to establish a compliant workforce, 562 612.3996.

By:  Timothy Sutton, Communications Editor

Today, recruiters, human resource managers, and small business owners utilize the Internet to recruit new employees. Online recruiting is cheap, efficient, and reaches a much broader audience than traditional forms of media. While there are numerous advantages to employing a professional staffing agency to locate prospective employees through the Internet, many employers choose to self-publish want ads through popular websites like monster.com or craiglist.org. Self-publishing online job posting gives the employer complete control over when, where, and how long a post will be visible to the public. Ultimately, do-it-yourself recruiting can be personally tailored to suit a particular employer’s needs.

But recruiters beware. The Internet is much more sophisticated than a virtual corkboard. Keywords and phrases in your job listings can be tracked and monitored by government software, then stored in databases. Recently, the Civil Rights Division of the Office of Special Counsel (OSC) released a Best Practices notice for online job posting. Whether this notice foreshadows future litigation over civil rights violations in hiring practices is yet to be determined; regardless, the message is clear, employers need to exercise caution when recruiting online because the OSC is monitoring online want ads.

Immigration laws prohibit the use of discriminatory language regarding U.S. Citizenship, lawful permanent residence, citizenship status, or national origin unless required by law, regulation or executive order. Curiously, the OSC notice was released shortly after a handful of states attempted to curtail the rights of Deferred Action Childhood Arrival qualifiers to obtain state identification (see our previous post here). There is no data revealing any increase in discriminatory language found in online job postings, but a simple keyword search on either monster.com or craigslist.org reveals numerous non-compliant ads. For instance, if the word “citizen” is entered into Craigslist, ads for dishwashers, personal assistants, security guards, and caregivers pop up. Each ad contains some version of the following discriminatory language that the OSC notice clearly forbids pursuant to the Immigration and Nationality Act at § 1324b that prohibits discrimination based on the citizenship status or national origin in the hiring, firing unfair document practices (“document abuse”) during employment eligibility verification process, and retaliation:

•  “Only U.S. Citizens”
• “Citizenship requirement”*
• “Only U.S. Citizens or Green Card Holders”
• “H-1Bs Only”
• “Must have a U.S. Passport”
• “Must have a green card”

One explanation presented by the OSC for the common use of such language is the misinterpretation of federal employment laws. Employers are not limited to the recruitment of U.S. citizens. In fact, we recently published an article on the proper method of verifying the legal employment status of refugee/asylees. Due to the complexity of adhering to the legal requirements of recruiting, hiring, and employing individuals in today’s diverse workplace, employers should seek the professional guidance of an attorney. The cost savings and convenience of self-publishing job postings are heavily outweighed by the potential financial penalties and negative publicity of losing an anti-discrimination lawsuit.

Our office has the experience and successful track record necessary to protect the interests of your enterprise.  For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By: Timothy Sutton, Communications Editor

The State of Arizona behind Governor Jan Brewer has made their position clear, they do not support Deferred Action Childhood Arrivals. Brewer signed her own executive order to “defend” Arizona from President Obama’s Deferred Action Program. Executive Order 2012-06 alleges that because DACA workers are not given lawful status, but merely deferred status, DACA recipients can be legally denied the right to obtain a driver’s license or any public benefit.

Brewer justifies her executive order as a defense against DACA which she refers to as “federal paperwork,” that will result in “significant and lasting impacts on the Arizona budget, it’s healthcare system and additional public benefits that Arizona taxpayers fund.” A Brewer spokesperson sited specific public benefits that DACA holders will not be eligible for: KidsCare, a children’s health-insurance program; unemployment benefits; business and professional licenses and government contracts.

Legal challenges to Brewer opposition of Obama’s DACA program are expected this week. Under the REAL ID Act of 2005 Sec.202(C)(B)(2)(viii), a federal law that modified requirements for state driver’s licenses and ID cards, “deferred action” is a term used for those eligible for state issued identification and driver’s licenses. According to NBC News, Regina Jefferies a local Phoenix attorney, criticized Brewer’s executive order saying, “Immigrants in Arizona have in the past been granted “deferred action” for other reasons long before the new Childhood Arrivals program was announced.” Additionally, Brewer’s spokesperson said that DACA students would not receive in-state tuition pricing.

After Brewer’s announcement, protester’s outside of the Arizona state capital waived signs that read, “Why the hate?” This sentiment raises the question, is Brewer guilty of playing politics with immigrant lives? Certainly, extreme curtailing of the DACA program by states like Arizona (and Florida) appears to be less about state preservation than politics. This preemptive strike against the Presidential Executive Order is a sign of the strong resistance to come for future immigration reform that favors inclusion over deportation.

California officials announced they would honor the DACA program and issue driver’s licenses to eligible persons. As temporary California residents, DACA beneficiaries will be afforded in-state tuition pricing, driver’s licenses, and the temporary ability to seek employment.

The national success of the DACA program shall remain closely monitored. We will continue to keep you updated on this and other breaking immigration news. If your business has questions about the DACA program or hiring from this temporary workforce, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

Please check out our news and stay informed.

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