Fulfilling a campaign promise, Georgia Governor Nathan Deal has sign into law a sweeping immigration bill that will affect companies in Georgia that employ more than 10 full-time employees. The law, HB87, requires companies to register with the federal E-Verify program and check the legal status of new hires. It also creates the offense of “aggravated identity theft” for the use of false information. In addition, it allows the police to question individuals about their immigration status and mandates sanctions for those who harbor or transport undocumented migrants.

HB87 passed by a vote of 112-59 in the lower house and 39-17 in the Senate. The Senate’s effort to block the portion of the bill that required use of the federal E-Verify system to ascertain the immigration status of employees failed.

In addition, businesses in Georgia must begin using E-Verify as early as January 1, 2012, depending on the size of the business. Those with 500 employees or more must begin using E-Verify on January 1, 2012; those with 100-499 employees, July 1, 2012; and those with 11-99 employees, July 1, 2013.

In addition, beginning July 1, 2011, anyone who knowingly transports or harbor an illegal immigrant or encourages an illegal immigrant to come to Georgia could be fined up to $1,000 and be imprisoned for up to 12 months.

 

In President Obama’s May 10th speech at Chamizal National Memorial, at the U.S.-Mexico border in El Paso, on the need for immigration reform in the United States, he included an outline of his proposal for comprehensive immigration reform and a plea for people to voice their support.

His proposal addressed three key employment-related areas. First, in line with his administration’s immigration enforcement strategy, he emphasized the need to hold businesses accountable for the exploitation of undocumented workers. Second, he encouraged the creation of a path for the best and the brightest studying at U.S. universities to remain in the U.S. to start businesses and create jobs. Finally, he proposed providing U.S. farms a legal way to hire foreign workers.

Jackson Lewis continues to monitor the prospect of reform and its potential impact on all employers.
 

Guest Blog by Scott Blaney

The Ninth Circuit Court of Appeals has dealt a blow to Arizona’s controversial Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) on April 11, affirming a lower court’s decision to block key portions of the immigration law from taking effect. The Act requires law enforcement officials to attempt to determine the immigration status of any person that they believe to be an alien unlawfully present in the United States. The U.S. Department of Justice challenged S.B. 1070 in federal district court in Phoenix, arguing that the authority of the federal government to regulate immigration preempted Arizona’s attempt at curbing illegal immigration.

Of the Act’s mandates aimed at deterring the unlawful entry and presence of illegal immigrants in Arizona, a federal district court in Phoenix blocked four of the most controversial as unconstitutional: (1) the portion of the law that requires an officer to attempt to determine the immigration status of a person stopped, detained or arrested upon reasonable suspicion of unlawful presence; (2) the portion that makes failure to apply for or carry alien registration documents a criminal act; (3) the portion that allows a warrantless arrest of a person where there is probable cause to believe the individual committed an offense that makes him or her removable from the U.S.; and (4) the portion that makes application for or performance of work by illegal immigrants a criminal act. The Ninth Circuit agreed with the lower court.

Other portions of the law, however, have been permitted to stand, including: (1) a mandate that local law enforcement officers enforce federal immigration laws; (2) the portion that makes the transport or harboring of an illegal immigrant a criminal act; and (3) the portion that makes the picking up of a day laborer in a roadway a criminal act if it impedes traffic.

Proponents of the law, including Arizona Governor Jan Brewer and state Attorney General Tom Horne, have vowed to appeal the ruling.
 

The Social Security Administration (SSA) has resumed notifying employers of social security number mismatches of employees. The No-Match or “Request for Employer Information” letter states that the information reported on an individual’s W-2 or W-2c form do not match the Agency’s records. On receiving a No-Match letter, the SSA requests the employer do the following:

• Compare the SSA information with the individual’s employment records.

• If the records match, ask the employee to check the name and Social Security number on their Social Security card.

• If the card does not show the employee’s correct name or Social Security number, or if a name change or a correction is necessary, instruct the employee to contact a Social Security Administration office to resolve the discrepancy.

• Provide written responses to several questions about the individual in question and return the completed form to the Agency (separately from any Form W-2c correction filing).

The SSA cautions the employer that the No-Match letter alone should not the basis for taking adverse action against an employee. A mismatch can be for many reasons, including typographical errors, incomplete or blank names reported, name changes, or incomplete or blank social security numbers reported. In the past, about 10 percent of all W-2s initially received by the Agency have some sort of a name-number mismatch.

Employers who receive a No-Match letter should contact legal counsel to determine whether any action is necessary. Each case is different and must be examined and analyzed individually.
 

On April 3, 2009 USCIS published an interim rule intended to improve the integrity of the Employment Eligibility Verification (Form I-9) process. This interim rule made several key changes to the Form I-9 process, including requiring employers to accept only unexpired documents, deleting outdated documents from the list of acceptable documents, and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of Marshall Islands. The final rule adopted the interim rule without change.

The final rule was published in the Federal Register on April 15, 2011 and will be effective on May 16, 2011. Employers may continue to use the two most recent versions of the Form I-9 (Rev. 08/07/2009 and 02/02/2009). It is critical that employers ensure that their current I-9 processes are in compliance with the final rule.
 

The House Subcommittee on Immigration Policy and Enforcement has conducted a number of hearings in 2011 questioning the value of all forms of immigration. On April 5th, it held a hearing on diversity visas, a program which provides 55,000 green cards annually by lottery to persons from countries that do not currently send many immigrants to the United States. The diversity visa is a relatively small program designed to increase the diversity of immigrants entering the country. One prime example of a diversity visa winner is famed American Major League of Soccer star Freddy Adu.

Last week, the Subcommittee heard arguments regarding placing additional restrictions on the H-1B visa program. The H-1B visa program is an essential immigration category used by U.S. employers to bring foreign, professional-level talent to the U.S. for key positions. While it is used a great deal by the IT industry, it is also used for many other specialty positions that require at least a baccalaureate degree in a specific field. H-1B petitions are sought for scientists, financial analysts, pharmacists, researchers, automotive designers, and engineers, among others.

Jackson Lewis continues to keep a sharp watch on congressional efforts to limit legal immigration paths that are essential to our economy.
 

 

To avoid potential conflict, the U.S. Department of Labor (DOL) and the Department of Homeland Security (DHS) have entered into a Memorandum of Understanding (MOU) concerning their respective civil worksite enforcement activities. Under the March 31, 2011, MOU, U.S. Immigration and Customs Enforcement agreed that, unless determined necessary by the Director of ICE, Secretary of Homeland Security or an Officer of the DOL, it would refrain from engaging in civil worksite enforcement at a worksite if there is an existing DOL investigation of a labor dispute. The MOU specifically states that ICE and DOL agree to create a means by which they will exchange information from their respective investigations. 

The DOL’s enforcement activities are to ensure proper wages and working conditions for all workers regardless of their immigration status. DHS enforces immigration laws to ensure that all workers are authorized to work. 

It is unclear how the MOU will be implemented by a prospective joint Worksite Enforcement Coordination Committee. What is clear is that there will be information sharing between the DOL and DHS/ICE. While they generally will not conduct joint or coordinated civil worksite enforcement, ICE is not restricted from investigating after a DOL investigation is completed.

The U.S. government has become increasingly active in enforcing immigration compliance against corporate employers in recent years. Thus, it is critical for employers to ensure their policies and practices are in compliance with laws and regulations enforced by the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs (OFCCP), the Occupational Safety and Health Administration (OSHA), and ICE.
 

It is H-1B season again. The United States Citizenship and Immigration Services officially announced today that they are accepting H-1B applications for FY2012. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. Similar to last year, we do not expect the H-1B quota to be fully utilized until late 2011. However, employers should start looking to initiate cases for employees who might be subject to the quota in order to assure themselves a visa before the cap hits.
 

At least 12,000 additional numbers will be available for EB-2 (employment-based, second preference) immigrant visa because of a dramatic reduction in the use of EB-1 (employment-based, first preference) immigrant visa, the Chief of Immigrant Visa Control and Reporting Division, U.S. Department of State, Charlie Oppenheim, has announced. He said U.S. Citizenship and Immigration Services “ha[s] seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”
According to Mr. Oppenheim, the fall-off in demand for EB-1 numbers began in October 2010. To find out current processing dates, check the visa bulletin website.
 

Becoming the latest state to mandate E-Verify usage, Governor Bob McDonnell announced that Virginia state government agencies will be required to utilize the online system for new hires effective July 1, 2011, in order to determine the employment eligibility of new hires.

Virginia had already passed a law in 2010 (H.B. 737) requiring state executive branch agencies to use E-Verify starting in December 1, 2012, and amending a state code provision to make it a misdemeanor for any Virginia employer to knowingly hire or employ persons not eligible to work in the United States. Federal laws already prohibit the knowing hire or employment of such individuals. Governor McDonnell’s latest move will replace state agencies’ current procedures on employment verification and accelerate the E-Verify requirement from the initial date of December 1, 2012, to July 1, 2011.

A spokesperson for the Governor’s office stated that the acceleration of the E-Verify requirement was due in part to recent upgrades in the E-Verify system, including the launch of the E-Verify Self-Check tool, which went live March 21. Provided by the Department of Homeland Security, this new web tool is available to workers for the purposes of checking the accuracy of their information in the relevant databases (Social Security Administration and DHS). The initial release is available only to individuals with addresses in Arizona, Colorado, Idaho, Mississippi, Virginia and the District of Columbia. The Self-Check tool asks certain questions aimed to verify the identity of the individual. Once verified, the individual can then confirm whether or not the relevant databases accurately reflect his or her appropriate work authorization status. If the self-check results in a possible mismatch with either the SSA or DHS database, the individual would have an opportunity to correct this information prior to going through the same verification procedure while in the process of joining a new company. As the program is quite new, it is too early to judge whether it is effective. Stay tuned for more updates on this and other E-Verify developments.