Badmus

The Department of Homeland Security’s Immigration and Customs Enforcement Agency (ICE) has announced that it will audit the I-9 forms of thousands of businesses in the coming years. With potential fines of $110 to $1100 for each violation found on an I-9 form, no matter how innocent, companies must ensure that their I-9 forms are error-free. Here are the 10 most common mistakes employers make that can costs thousands if left uncorrected.

Mistake #1 - The Employer and/or employee fails to sign and date the I-9 forms where indicated on the form.

Mistake #2 - The employee fails to complete section 1 of the I-9 Form on the first date of work.

Mistake #3 - The Employer does not examine the I-9 documents and fails to complete section 2 of the I-9 form with three business days of hire.

Mistake #4 - The Employer leaves the start date for work blank in the “certification” block of section 2.

Mistake #5 - The employee does not mark one of the four blocks in section 1 regarding his or her status or fails to provide the necessary information for the third and fourth blocks. The employee must indicate whether he is a U.S. citizen, noncitizen national, permanent resident, or otherwise authorized to be employed.

Mistake #6 - The Employer forgets to track the expiration date of work authorization and does not re-verify an employee’s employment authorization on or before the expiration date listed on the I-9 form.

Mistake #7 - The Employer over-documents and lists too many documents in section 2. This could lead to a discrimination charge against the Employer.

Mistake #8 - The Employer looks at photocopies rather than original verification documents. The employee must present original documents and the Employer should never accept photocopies of documents for verification.

Mistake #9 - The Employer fails to match the employee’s verification documents - the Employer should look for a match and consistency in the employee’s name and date of birth on the documents.

Mistake #10 - The Employer fails to consistently apply its photocopying policy. The law does not require Employer to make copies of verification documents; however, if the Employer does make copies, it must make copies for all employees, not just some. And, any copies of verification documents must be kept with the I-9 form and nowhere else.

An internal audit of your I-9 forms can uncover these mistakes and correcting them before a government audit can save you thousands!

Categories: Employment Immigration, Employer Compliance, Blogroll |

Shortly after a devastating earthquake destroyed the homes and lives of innumerable Haitians, Department of Homeland Security Secretary Napolitano announced the designation of Temporary Protective Status (TPS) for the roughly 100,000-200,000 eligible Haiti nationals currently in the United States as of January 12, 2010. As the world continues to respond with an outpouring of relief efforts, it is important to understand the facts on what TPS is, what it isn’t, how it works and who is eligible.

The Immigration Policy Center (IPC) released a fact sheet which provides background information vital to understanding TPS, including:

• Temporary Protected Status (TPS) is a temporary, humanitarian form of relief from deportation that does not include granting permanent residence or “amnesty” to unauthorized immigrants in the United States.
• The 100,000-200,000 Haitian immigrants whom the Department of Homeland Security (DHS) estimates are now in the United States on a temporary basis or without authorization will not be subject to removal as long as there is no functioning country to which they can return, and provided that they do not have criminal records.
• The Secretary of Homeland Security, “in consultation with the Secretary of State, can issue TPS for periods of 6 to 18 months and can extend these periods if conditions do not change in the designated country.”
• Major requirements for TPS include compliance with nationality and physical presence criteria (such as evidence of a passport issued by the designated country), continuous physical presence in the United States since the date TPS went into effect, timely registration, and being otherwise admissible as an immigrant.

To view the fact sheet in its entirety, see:

• Granting Refuge: Temporary Protected Status (TPS) for Haitians in the United States

Categories: Legislation and Policy, Immigration Litigation and Removal, Family Immigration, Blogroll, General |

As of October 30, 2009, approximately 53,800 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H1-B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

USCIS  indicated that the jump in the H-1B count from the last update on September 18, 2009 (46,000) to the current number (53,800) is due more to the reaching of the Masters cap and the placing of the remaining Masters cap cases into the regular cap pool then any significant increase in H-1B filings over the last month and half. Petitioners, as always, should be advised to file H-1B cap cases as quickly as possible.

Categories: Employment Immigration, Blogroll |

From the Immigration Policy Center:

Washington D.C. - As anti-immigrant groups continue to use immigration as a scare tactic to thwart progress on the health care debate, the Immigration Policy Center has provided factual information on why including legal immigrants in health care reform benefits all Americans. By including legal immigrants in health care reform, we can lower the overall costs. Refusing to accept people who want to pay into the system just doesn’t make sense. Immigrants are the not the cause of the health care crisis, but they can certainly be part of the solution.

Who are legal immigrants?

• Each year the U.S. government generously admits immigrants into the country to live, work, reunite with their families, and pursue the American dream. Some have parents, children, or spouses in the United States who sponsored them. Others have been admitted to fill jobs. Still others arrive as refugees or asylees, fleeing persecution in their home country. Many immigrants eventually become U.S. citizens.

• Legal immigrants are citizens-in-waiting. Many legal immigrants are on a path to citizenship. Between 2006 and 2008, over 2 million legal immigrants became U.S. citizens.

Excluding legal immigrants from health care doesn’t make sense.

• Just like U.S. citizens, legal immigrants work and pay taxes. Large numbers of legal immigrants are currently serving in the U.S. military. Legal immigrants are part of our communities, schools, workplaces, and places of worship. It does not make sense to exclude them from paying into the health care system for any amount of time.

• Many legal immigrants live in “mixed-status families” and have U.S.-citizen children. These U.S.-citizen children are often uninsured because their parents work in jobs that do not offer health insurance, or because of fear and confusion about enrolling eligible children in public safety-net programs such as Medicaid and the Children’s Health Insurance Program (CHIP).

• Including legal immigrants in the health care system not only strengthens the system, but is a critical part of their integration into U.S. society. In addition to working, paying taxes, and learning English, legal immigrants should be able to pay their fair share and have affordable health care like everyone else.

• Health care is not a zero-sum game. Including legal immigrants does not mean that U.S. citizens get less care. Making affordable health care available to everyone benefits everyone.

The more people who pay into a system of health insurance, the more everyone benefits.

• It is common sense that the more people who pay into the health care system, the more the costs are spread out over the entire population. Immigrants are eager to pay their fair share and contribute to paying for health reform. In return, immigrants should have affordable health insurance like everyone else in America. It’s common sense to include immigrants’ contributions.

• Access to health care, particularly preventive care services, not only improves public health, but is a cost savings. The Center for Science in the Public Interest concluded that comprehensive prevention programs are the most economical way to maximize health and minimize health care costs.

For more information on immigrants and health care, see:

• IPC Fact Sheet: Including Legal Immigrants in Health Care Reform: Just What the Doctor Ordered
• IPC Fact Sheet: Sharing the Costs, Sharing the Benefits: Inclusion is the Best Medicine
• IPC Blog Post: Including Immigrants in Health Care Reform Makes Economic Sense

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Categories: Legislation and Policy, Blogroll |

Categories: Employment Immigration, Blogroll, General |

On July 8, 2008, the Council on Foreign Relations released an Independent Task Force Report on U.S. Immigration Policy. The Task Force, co-chaired by former Florida governor Jeb Bush and former White House chief of staff Thomas “Mack” McLarty, concludes “The continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America’s economy, to jeopardize its diplomacy, and to imperil its national security.”

The findings of the report reflect the consensus of a bipartisan group of leaders in the fields of immigration policy, homeland security, education, labor, business, academia and human rights.

Read the Council on Foreign relations press release.

Source: AILA InfoNet Doc. No. 09070867 (posted Jul. 8, 2009)

Categories: Employment Immigration, Employer Compliance, Blogroll |

FACT: E-Verify does not effectively root out all undocumented workers. Some undocumented workers will be erroneously confirmed as authorized to work. E-Verify cannot identify counterfeit, stolen, or borrowed identity documents. A worker may present “good” documents that check out through E-Verify, but E-Verify cannot confirm that the document belongs to the person presenting them.
FACT: E-Verify will erroneously report U.S. citizens and legal workers as unauthorized. Some U.S. citizens and other legal workers will not be confirmed and will not be allowed to work. Due to errors in the Social Security Administration (SSA) and DHS databases, some citizens and legal workers will receive tentative nonconfirmations (TNCs), or even final nonconfirmations, and will not be able to resolve the discrepancy or may not even know about the problem. They will be denied employment and paychecks.

More mythbusting facts and information about the E-Verify program can be found in this fact sheet from the Immigration Policy Center.

Source: AILA InfoNet Doc. No. 09070868 (posted Jul. 8, 2009)

Categories: Employment Immigration, Employer Compliance, Blogroll, General |

On June 26, 2009, the ACLU of Texas made the following, highly-anticipated announcement regarding the settlement of a pending case in Brownsville, Texas, involving Mexican Americans who were categorically denied U.S. passports simply due to the fact that they were born by midwife:

State Department Agrees To Fair Issuance Of Passports To Mexican Americans (6/26/2009)

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

McALLEN, TX –The U.S. Department of State (DOS) has agreed to implement new procedures designed to ensure the fair and prompt review of U.S. passport applications by Mexican Americans whose births in Texas were attended by midwives. Under the agreement, no eligible applicant should be denied a passport.

The procedural changes are the result of a settlement agreement following a class action lawsuit filed by a coalition of civil rights and legal organizations including the American Civil Liberties Union, the ACLU of Texas, the international law firm Hogan & Hartson LLP, and Refugio del Rio Grande, Inc.

“The new procedures agreed to by the government are aimed at restoring the core American values of fairness and equality to the ways in which it issues U.S. passports,” said Vanita Gupta, staff attorney with the ACLU Racial Justice Program who worked on the case along with the ACLU Immigrants’ Rights Project. “Citizens will no longer be denied a passport solely because of their race, ancestry or because they happened to be born at home with a midwife.”

The settlement comes at a particularly crucial time. The Western Hemisphere Travel Initiative (WHTI), which went into effect June 1, requires every American who wishes to exit or enter or the United States to have a valid U.S. passport or passport card. Previously, citizens needed only a valid U.S. driver’s license to travel between the U.S. and Mexico or Canada.

“For U.S. citizens who live in the Southwest, a passport is now as necessary as a driver’s license,” said Lisa Graybill, Legal Director for the ACLU of Texas. “We are relieved that US citizens who work, shop, receive medical care, and have family on both sides of the border will no longer be in danger of losing their jobs, risking their health, or being separated from family members simply because of the circumstances of their birth.”  

Although midwifery has been a common practice for more than a century – particularly in rural and other traditionally underserved communities – the lawsuit charged that DOS was violating the due process and equal protection rights of virtually all midwife-delivered U.S. citizens living in the southern border region by forcing them to provide an excessive number of documents normally not required to prove their citizenship. Then, even after the applicants supplied further proof of their citizenship, DOS responded by summarily closing their applications without explanation.

“Because DOS lacked clear standards, countless passport applicants were treated arbitrarily, said Lisa Brodyaga, the attorney for Refugio del Rio Grande. ”With this settlement, applicants born with midwives are guaranteed the same full and fair consideration of their applications as everyone else.  This is especially critical now given that the June 1st deadline of WHTI has passed.”

The lawsuit also charged that the Department’s practices were violating the Administrative Procedure Act, which was enacted as a safeguard against arbitrary and capricious government agency procedures. During the course of the litigation, several of the plaintiffs were granted passports even though they had been denied previously on the very same showing of evidence of citizenship. 

Pending court approval, DOS will train its staff on how to fairly weigh all the evidence provided in passport applications and how to avoid improperly subjecting people whose births were assisted by midwives in Texas and along the U.S.-Mexico border to heightened scrutiny in reviewing their passport applications. All denials will be automatically reviewed by a three-member panel comprised of experienced DOS staff members, and if that panel also denies an application, DOS must communicate the specific reasons for the denial to the applicant. The applicant can then challenge the denial and ask DOS to reconsider its decision.

Additionally, anyone birthed by a midwife who has filed an application for a passport between April 2003 and September 15, 2008 and, with a few exceptions, whose application was not expressly “denied,” can re-apply for free. DOS will be setting up mobile units across the border on specific dates to assist those reapplying.

DOS has also agreed to restrictions on a list it maintains of suspect midwives and other birth attendants, which it purported to use to justify its discriminatory policies. Importantly, DOS will not deny a passport application simply because the applicant’s birth attendant or midwife is on the list. Furthermore, DOS will conduct regular reviews of the list to ensure that no one is included unless DOS has a reasonable, lawful basis to do so. These measures will help ensure that DOS does force passport applicants to take unnecessary measures to prove their citizenship and does not arbitrarily deny passports merely because the individual was born to a suspect midwife. 

“We’re very happy that we were able to come to an agreement with the government that recognizes every U.S. citizen’s constitutional right to be treated with fairness and equality,” said Adam K. Levin of Hogan & Hartson. “You can’t deny basic rights to an entire group of U.S. citizens because their parents did not deliver them in hospitals.”

…. 

To read the announcement and find links to the complaint and settlement, click here.

By Michelle Richart

Categories: Legislation and Policy, Immigration Litigation and Removal, Family Immigration, Blogroll, General |

On July 1, 2009, Attorney General Holder appointed Brian M. O’Leary as the new Chief Immigration Judge.  O’Leary has been working with the EOIR and BIA since 1994.  Prior to then Judge O’Leary worked for many years with the legacy INS.  To read the Department of Justice announcement, click here.

By Michelle Richart

Categories: Immigration Litigation and Removal, Blogroll |

Reuniting Families Act (S. 1085) was introduced in the Senate on 5/29/2009.

The bill aims to help family members reunite in America in a timely manner by reforming America’s family-based immigration system to end lengthy separations of loved ones, promote family stability and foster the economic growth.

For the full text, click here

Categories: Immigration Litigation and Removal, Family Immigration, Firm News, Blogroll, General |