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Archive for July, 2010
Wednesday, July 28th, 2010
Before an employer can create a case in E-Verify, both the employer and employee must complete the Employment Eligibility Verification form, or Form I-9. All U.S. employers, regardless of whether they participate in E-Verify, must complete Form I-9 no later than 3 business days after the employee begins work for pay. This is commonly known as the “three day rule.” According to the Department of Homeland Security (DHS), an E-Verify case is considered late if the employer creates it later than the third business day after the employee first started work for pay.
Under the recently redesigned E-Verify system, if the case is created late, the program will prompt the employer to explain the reason for the untimely case creation. The reasons provided are:
- Awaiting Social Security Number;
- Technical Problems;
- Audit Revealed that New Hire Was Not Run;
- Federal Contractor with FAR E-Verify Clause verifying an existing employee; or
- Other.
DHS has stated that it added this screen because recent evaluations of E-Verify found that employers often created cases late. This partly stems from confusion over how to determine the “date of hire” for the employee. In a significant change, DHS has stated that “the first day the employee starts work for pay is not included in the three business day calculation.” Therefore, if the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer). DHS has created the following chart as an example:
| Determining the E-Verify Hire Date |
| If you create the case in E-Verify: |
Then the E-Verify hire date is: |
| Before the employee starts work for pay |
The date you create the case in E-Verify |
| On or after the employee starts work for pay |
The date the employee started work for pay |
This may come as a surprise to many employers who previously thought that the day of hire should be counted as count Day 1, then Day 2 and then Day 3. DHS, however, now clarified that employers have three days after the date of hire to create a case in E-Verify. Employers who have questions regarding when to create a case in E-Verify should contact their Klasko Law attorney.
Posted in Agency Updates | Click Here To Comment »
Wednesday, July 28th, 2010
On July 28, 2010, United States District Judge Susan Bolton issued a preliminary injunction that prevents Arizona from enforcing portions of its now infamous legislation, S.B. 1070. While the injunction does not prohibit enforcement of all sections of the law, the injunction does prohibit enforcement of the most controversial sections.
As Klasko previously reported, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity. The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration. The law makes the failure to carry immigration documents a crime and it gives the police power to detain anyone suspected of being in the country illegally.
In her opinion granting the preliminary injunction, Judge Bolton stated that the United States is likely to succeed on the merits that several sections of S.B. 1070 are preempted by federal law. Specifically, Judge Bolton enjoined Arizona from enforcing Section 2(B) of S.B. 1070, which requires that “an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.” This section of the law has been heavily criticized that it allows Arizona law enforcement to engage in racial profiling.
Judge Bolton also enjoined Section 3, which makes it a crime for “the failure to apply for or carry alien registration papers,” and Section 5, which makes it a crime “for an unauthorized alien to solicit, apply for, or perform work.” Finally, Judge Bolton enjoined Section 6, which authorizes “the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.” Judge Bolton further explained that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest.”
Now that the Court has decided on the motion for preliminary injunction, the lawsuit will proceed to a hearing on the merits of the case, and Judge Bolton will decide whether Arizona’s law as a whole is preempted by federal law. While the case proceeds, Arizona is stopped from enforcing the above provisions by Judge Bolton’s preliminary injunction.
Posted in Agency Updates, Hot Questions, News & Politics | Click Here To Comment »
Monday, July 12th, 2010
Employers are often caught between the requirement to accept a valid documentation evidencing identity and employment authorization, on the one hand, and the need to administer a corporate immigration policy on the other.
One tool for administering a corporate immigration policy is to request that applicants confirm, early in the screening process, whether they will require immigration sponsorship. Because applicants who are US citizens, permanent residents, asylees, refugees, and temporary residents under the 1986 amnesty law are protected from citizenship status discrimination, some employers believe that any pre-hire inquiry into immigration status is prohibited, even where the job applicant does not fall into one of those categories.
In an exchange of correspondence posted to his blog, attorney Angelo Papparelli recently received guidance from the Office of Special Counsel at the Justice Department, which is responsible for enforcing the anti-discrimination provisions. He requested guidance from OSC about how an employer could determine whether job applicants presenting employment authorization documents were only authorized to work because of a pending application for adjustment of status. Such job applicants will only be able to continue their employment authorization if their application for permanent residence continues, and may need to present evidence to USCIS of their change in job.
OSC clarified that because temporary visa holders and applicants for adjustment of status to permanent residence are not protected from citizenship status discrimination, “an employment decision made exclusively on the basis of an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.” Employers can, therefore, feel free to make decisions about whether or not to hire an applicant who is a temporary visa holder or an applicant for adjustment of status in accordance with their corporate immigration policy.
OSC also provided guidance on the kinds of inquiry an employer wishing to discover information about an applicant’s immigration status may ask prior to making a hiring decision. OSC approved use of a somewhat complicated question, albeit one which makes clear what information the employer is requesting about an employee’s need for future visa sponsorship. OSC approved the following two questions for inclusion on job applications, so long as they are asked of all job applicants:
1. Are you legally authorized to work in the United States? _____ Yes _____ No
For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.” (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.)
2. Will you now or in the future require “sponsorship for an immigration-related employment benefit?” _____ Yes _____ No
This guidance is particularly helpful for employers conducting job searches for technically trained personnel, many of whom may have initiated the permanent residence process with other employers. If you need further guidance on particular situations, please feel free to contact your Klasko, Rulon, Stock & Seltzer, LLP attorney.
Tags: anti-discrimination, discrimination, DOJ Office of Special Counsel, I-9 Compliance
Posted in Agency Updates, Hot Questions, Worksite Enforcement | Click Here To Comment »
Thursday, July 8th, 2010
Immigration & Customs Enforcement (ICE) announced that it will realign its offices around its two core operational responsibilities – criminal investigation and civil immigration enforcement. In an internal memorandum from John Morton, Assistance Secretary of ICE, it was announced that ICE will realign its offices to promote criminal investigations over deportation. The three new directorates are: Homeland Security Investigations (HIS), Enforcement and Removal Operations (ERO), and Management and Administration.
HSI will align the existing ICE offices that are primarily devoted criminal investigation, namely the Offices of Intelligence, International Affairs, and Investigations. This directorate pursue ICE’s existing role as DHS’ principal investigative program, with responsibility for ICE’s national security programs and ICE’s investigative authority over criminal violations of U.S. law relating to illicit trade, travel, immigration, and finance. The directorate will also continue to investigate violations of the employment verification laws and visa violations in the U.S. and abroad.
ERO will align the existing offices in ICE that are primarily devoted to civil immigration enforcement, including the Office of Detention and Removal Operations (DRO) and the Secure Communities program. This directorate will ensure a coherent and consistent approach to civil immigration enforcement in a manner that prioritizes convicted criminals, fugitives and illegal re-entrants, and recent border violators.
Management and Administration will consist of the Offices of the Chief Financial Officer, the Chief Information Officer, Human Capital, Acquisition Management, Policy, Privacy, Training and Development, National Firearms and Tactical Training Unit, Freedom of Information Act, the Chief Diversity Officer, and Equal Employment Opportunity. These offices support the missions of HSI and ERO and provide sound agency management.
Assistant Secretary Morton stated that the new directorate system will create a more efficient organization alignment within ICE.
Posted in Agency Updates, News & Politics | Click Here To Comment »
Thursday, July 8th, 2010
On July 6, 2010, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity. The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration. In its press release about the suit, the DOJ has stated that “a patchwork of state and local policies would seriously disrupt federal immigration enforcement. Having enacted its own immigration policy that conflicts with federal immigration law, Arizona ‘crossed a constitutional line.’” The suit was filed on behalf of the DOJ, the Department of Homeland Security (DHS), and the Department of State (DOS), which share responsibility over the nation’s immigration laws.
Arizona’s S.B. 1070 has caused significant controversy since being enacted on April 23, 2010. The law makes the failure to carry immigration documents a crime. It also gives the police power to detain anyone suspected of being in the country illegally. The law has received criticism that it gives police the power to engage in racial profiling, particularly against the many Hispanics residing in Arizona. In fact, S.B. 1070 was immediately criticized by the Obama administration in April, and this suit marks yet another step in the federal government’s fight against the patchwork of state-enacted immigration laws popping up around the country.
Leading up to the suit, the DOJ consulted with Arizona officials, law enforcement officers and groups, and civil rights advocates to gain a full picture of how the law is affecting both citizens and aliens alike in Arizona. In fact, the law suit is supported by Arizona law enforcement officials, including the Chiefs of Police of Phoenix and Tucson, who filed declarations with the lawsuit stating that S.B. 1070 will hamper their ability to effectively police their communities. The DOJ has stated that “Arizona impermissibly seeks to regulate immigration by creating an Arizona-specific immigration policy that is expressly designed to rival or supplant that of the federal government. As such, Arizona’s immigration policy exceeds a state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U.S. foreign policy objectives.”
The DOJ has asked for a preliminary injunction to stop enforcement of the suit based upon irreparable harm caused by the law’s operation. The case has been assigned to Federal Judge Susan Bolton. Judge Bolton has scheduled a preliminary hearing on the injunction for July 22, 2010. No doubt the outcome of this case will affect other states contemplating passing similar immigration-related state legislation.
Tags: Immigration News
Posted in Agency Updates, Hot Questions, News & Politics | 1 Comment »
Thursday, July 8th, 2010
Klasko Law attorneys participated and presented at the 2010 American Immigration Lawyers Association Annual Conference in Washington, DC from June 30 – July 3, 2010. This annual gathering is the premier conference on immigration law in the country. The following is a brief synopsis of each of the respective sessions our attorneys participated in:
On June 30, 2010, Elise Fialkowski served as a panelist for the session “Doing the Math: Reading Business and Financial Documents.” This panel discussed what every immigration lawyer needs to know about the most common financial documents for public, private and non-profit companies and how to effectively use financial documentation to strengthen and effectively support both immigrant and non-immigrant visa applications.
On July 1, 2010, Suzanne Seltzer discussed “Attracting, Retaining, and Promoting Legal Support Staff & Associates” where she advised on locating, hiring, enriching, rewarding and retaining the best people.
On July 3, 2010, Bill Stock shared his expertise in defending clients against Department of Labor enforcement actions in a panel called “Taking the Initiative: Preparing to Defend and LCA Audit.”
Also on July 3, 2010, Ron Klasko led a panel entitled “EB-5: Investing in America, Creating Jobs.” Ron explained how to choose between the EB-5 immigrant visa and other immigration options, how to choose between individual and regional center EB-5s, risks for regional center investors, and issues and problems in removal of conditions from the investor’s green card.
If you would like more information on any of the above topics or copies of the articles prepared in connection with these sessions, please contact the respective speakers.
Posted in Agency Updates | Click Here To Comment »
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