Obama Nominee Finds Himself in I-9 Hot Water

A recent Washington Post report has succeeded in highlighting one of the more confusing compliance requirements for small business owners: the I-9 verification. It seems that Alan Bersin, the Administration’s nominee for (and current recess-appointed) Commissioner of Customs and Border Protection, the agency charged with protecting the nation’s borders, has failed to complete I-9s for the eight or nine household workers he has employed over the last eight years. According to the Washington Post, Acting CBP Commissioner Bersin was unfamiliar with the Form I-9 and his need to complete them as an employer. If the official responsible for protecting our borders (who is also a former “Border Czar” and U.S. Attorney) cannot fulfill his own I-9 obligations, does a small business owner stand a chance?

The I-9 or Employment Eligibility Verification Form is a requirement of the Department of Homeland Security’s U.S. Citizenship and Immigration Services. Employers must use it to verify an employee’s identity and to establish that the worker is eligible to accept employment in the country.

While the Commissioner’s failure to complete required I-9’s does not leave him open to risks such as a DHS raid, I-9 audit, or criminal investigation, a  business owner may not be so lucky. At the recent Jackson Lewis 20th Corporate Counsel Conference, an agent from U.S. Immigration and Customs Enforcement (“ICE”) said that in 2010 ICE will double the number of I-9 audits it conducted last year. The agent noted that approximately 33 percent of employers targeted in last year’s I-9 audits were found not in compliance and they were all sanctioned. The good news is that the majority of the employers targeted understood (or had good legal advisors) and were able to follow to the requirements.   These employers likely expended tremendous time and resources to get their I-9 files in order and to reply to the audit notices.

The Commissioner’s situation is instructive and should be another call to fix the I-9 process.  Common sense (not DHS handbook consisting of more than 80 pages to explain the one-page Form I-9) should control. When even President Barack Obama’s nominee cannot make out his I-9 obligations, we all have a problem. 

The government’s declarations of more enforcement and I-9 audits and threats of astronomical fines may make good politics, but they are no help to the honest businessman.   Education and simplification of the verification process would be welcomed. This does not require new laws and immigration reform. It’s all about forms and regulations. Add some common sense  and we might just get somewhere. Commissioner Bersin would probably agree.

Victor X. Cerda of our Washington, D.C. Region office authored this article.

The U.S. Immigration and Customs Enforcement (ICE) agency is stepping up its program to promote IMAGE (ICE Mutual Agreement between Government and Employers). IMAGE is a voluntary program under which ICE will “partner with companies representing a broad cross section of industries in order that these firms may serve as charter members of IMAGE and liaisons to the larger business community.”

IMAGE subjects a participating employer to standards far higher than normally required by the law that can pose unintended consequences for employers. Improper and inconsistent application of the complicated IMAGE employment-verification system could expose employers to claims of discrimination. Further, while adopting the “best practices” requirements through IMAGE is meant to enhance legal compliance, the additional requirements on participating employers could lead to a heightened risk of technical errors.

The initial steps for IMAGE require a participating employer to:

1) Complete a self-assessment questionnaire
2) Enroll in E-Verify
3) Enroll in the Social Security Number Verification Service (SSNVS)
4) Undergo a Form I-9 audit by ICE
5) Review and sign an official IMAGE partnership agreement with ICE

In addition, employers must take steps to comply with ICE’s “best practices,” which include:

1) Establishing a written hiring- and employment-eligibility verification policy
2) Establishing an internal compliance and training program that includes I-9 training, fraud detection and use of SSNVS and E-Verify
3) Restricting the conducting of I-9 and E-Verify processes to individuals who have received training
4) Arranging for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and E-Verify processes
5) Establishing a self-reporting procedure to report to ICE violations or discovered deficiencies
6) Establishing a procedure to report to ICE credible information of suspected criminal misconduct in the I-9 process
7) Establishing a program to assess subcontractors’ compliance with employment-eligibility verification requirements, encourage contractors to incorporate IMAGE Best Practices, and, when practicable, incorporate the verification requirements in subcontractor agreements
8) Establishing a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized workers and a protocol for responding to employee tips

According to ICE, the benefit to employers is credibility and access to training, including on the latest illegal schemes used to circumvent legal hiring processes. Furthermore, ICE will review the hiring and employment practices of IMAGE partners and “work collaboratively with them to correct isolated, minor compliance issues that are detected.”

While ICE claims that “Image Certified” will become the industry standard as it relates to unauthorized employment verification, since its inception nearly four years ago, adoption of the program by employers remains low (see attached is the list of “IMAGE Certified" Companies). Most companies reject IMAGE because of the many additional burdens it creates, many of which may result in additional costs and unnecessarily high standards.

Is it worthwhile for a company to become IMAGE Certified? Employers must weigh the risks and costs of the compliance obligations against the two primary benefits: (1) the value of the “IMAGE Certified” credential and (2) additional access to training and information. Employers should carefully review the new IMAGE initiative before deciding to participate.
 

The list of lawsuits challenging Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070) continues to grow. On May 17, 2010, 14 civil and immigrant-rights groups, along with 10 individuals, filed a lawsuit in U.S. District Court challenging the constitutionality of Senate Bill 1070. At least five separate lawsuits have been filed seeking to prevent the Bill from becoming effective on July 29, 2010. Unlike the others, the most recent lawsuit names Arizona’s county officials as defendants rather than Governor Jan Brewer.

The lawsuit alleges Senate Bill 1070 is unconstitutional on a number of grounds, including:

• The Bill violates the federal Supremacy Clause by attempting to bypass federal immigration law.

• The Bill deprives racial and national origin minorities of their 14th Amendment right to equal protection under the law by subjecting them to stops, detentions, questioning and arrests based on their race or national origin.

• The Bill infringes on the constitutional right to travel without being stopped, interrogated and detained.

• The Bill violates the First Amendment right to freedom of speech because it exposes speakers to scrutiny based on, among other things, an individual’s language or accent.

Several unions, including the UFCW and the SEIU, have signed up as plaintiffs for the most recent lawsuit. Labor unions have been extremely vocal in opposition to Senate Bill 1070 and have been active in calling for boycotts of Arizona businesses. These unions appear to be using opposition to the Bill as a tool to increase their organizing efforts in Arizona.

Jackson Lewis will continue to monitor the various legal challenges to the Senate Bill 1070 and will provide timely updates.
 

While Arizona’s controversial new immigration law, Senate Bill 1070, continues to garner national attention in the months leading up to its July 29 effective date, employers in Arizona must not forget their obligations under the already effective Legal Arizona Workers Act (“LAWA”). LAWA imposes severe penalties on employers who either “knowingly” or “intentionally” hire unauthorized workers.

On May 6, 2010, Maricopa County Sheriff Joe Arpaio raided a Phoenix business, arresting 24 employees suspected of being illegal aliens. Sheriff Arpaio conducted the raid after receiving a tip through his immigration hotline that employees at the business were engaging in identity theft. The recent raid was Sheriff Arpaio’s 32nd workplace raid in the period since LAWA took effect in January 2008.

Until recently, the Sheriff’s raids have focused primarily on the arrests of unauthorized workers and have not resulted in the prosecution of the businesses that employed them. However, that appears to be changing. The Maricopa County Attorney’s Office has initiated at least two cases against employers under LAWA. There are also indications that Arizona’s County Attorneys are gearing up for increased enforcement of LAWA. Senate Bill 1070 adds an “entrapment” defense to LAWA, which suggests that law enforcement will be engaging in more creative investigation techniques in the future. Moreover, the Maricopa County Attorney sought increased subpoena power under LAWA, but this initiative was successfully opposed by business groups and did not make it into the final version of Senate Bill 1070.

Finally, the lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging LAWA has made its way to the U.S. Supreme Court. The U.S. Supreme Court has invited the Solicitor General to file a brief on behalf of the U.S. government. With the recent nomination of Solicitor General Elena Kagan to the Supreme Court, it is not clear when the case will move forward.

Jackson Lewis will continue to follow developments under LAWA.
 

The Department of Labor has released a new online tool to help employers and employees understand how to comply with the H-1B visa program. This is part of the agency’s new compliance initiatives.

As background, the H-1B non-immigrant visa classification was created under the Immigration and Nationality Act to help U.S. employers who cannot obtain workers with needed skills from the U.S. workforce by authorizing the employment of qualified foreign workers under the H-1B visa program. The program establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of foreign H-1B workers, as well as to protect H-1B workers themselves. See http://www.dol.gov/whd/immigration/h1b.htm.

DOL’s new online H-1B Advisor addresses solely the Labor Condition Application requirements enforced by the agency’s Wage and Hour Division. This helps employers to determine whether they have complied with the H-1B Wage and Hour requirements and provides all employees and any interested individual detailed information and instructions with regard to filing a complaint against a U.S. employer believed not in compliance with the regulations.

The interactive, online H-1B Advisor describes the program’s standards and provides detailed information concerning H-1B employers’ and workers’ rights and responsibilities. Users can determine if they fulfill the requirements of the visa program by answering questions relevant to specific H-1B classified workers.  The H-1B Advisor also outlines the obligations imposed on H-1B employers, including notification requirements, monetary issues (obligation to pay, required wage rates, permissible deductions, benching, credits, termination, early termination penalty/liquidated damages issues), worksite issues, recordkeeping, and worker protections (whistleblower protection and displacement of U.S. workers), enforcement (filing a complaint against an employer, defenses, remedies and appeals process) and other requirements for employers deemed to be H-1B dependent or willful violators. 

The H-1B Advisor provides excellent resources to employers and employees in understanding the H-1B employers’ obligations and the workers’ (H-1B or U.S. workers) rights. Of course, given the readily available resources, employers must be vigilant in maintaining consistent and coherent corporate visa-sponsorship policies and procedures to ensure their immigration compliance efforts.

During the I-9 verification process, foreign-born employees often present a variety of Permanent Resident cards, commonly called “Green Cards.” However, for the last few decades, no version of the Permanent Resident card has been the color green.

USCIS announced on May 11 a new version of the Permanent Resident card will be issued. The card will include new, enhanced security features. (See USCIS Press Release, USCIS Q&A.) New, personalized elements of the card will make it more difficult to forge, and each card will contain a Radio Frequency Identification chip. Furthermore, the front of the card contains green-colored features, once again making the “Green Card” green!

The image below, provided by DHS, illustrates the security features on the new Permanent Resident card.

If you have any questions regarding the new Permanent Resident document, document verification, or the I-9 process in general, please let us know.
 

The city councils of two major Arizona cities – Tucson and Flagstaff – have announced their intentions to file lawsuits to challenge the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). The Flagstaff City Council voted unanimously in favor of a resolution authorizing the lawsuit. The Council described the move as an unfunded mandate for the City to carry out the responsibilities of the federal government. The cost to enforce the new immigration law will be overly excessive said Council members in Tucson as they authorized a lawsuit.

Meanwhile, City of Phoenix Mayor Phil Gordon, one of the most vocal opponents of the statute, said he will join with other Arizona mayors in filing a lawsuit seeking to invalidate the statute. Mayor Gordon had been pushing the Phoenix City Council to authorize a lawsuit on the City’s behalf, but was not able to gather sufficient support.

Additionally, both U.S. Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano continue speak critically of the Arizona statute. Testifying before the Senate Judiciary Committee, Secretary Napolitano stated she fears Senate Bill 1070 will force U.S. Immigration and Customs Enforcement (ICE) to use its already stretched resources to deal with those arrested under Arizona’s new law and will siphon federal money and staff away from hunting down dangerous immigrants. Moreover, Attorney General Holder has said that the Department of Justice is reviewing the statute and will consider all of its options, including “the possibility of a court challenge.”

Stay tuned as Jackson Lewis continue to follow the growing number of legal challenges to Arizona Senate Bill 1070.
 

While the business community has largely attempted to stay out of the debate surrounding Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), professional basketball team Phoenix Suns jumps to the center of the debate over the Bill with the team’s decision to wear “Los Suns” jerseys during its playoff game against the San Antonio Spurs on Cinco de Mayo. Suns’ owner, Robert Sarver, announced his disagreement with the Bill, describing it as “mean-spirited.” All of the Sun’s players were reportedly in favor of the decision to wear the jerseys.

Sarver was quoted as saying, “I thought we need to go on record that we honor our diversity in our team, in the NBA, and we need to show support for that. As for the political part of that, that’s my statement." The Suns currently have three foreign-born players on the team.

Groups opposing the Bill have looked to sports teams and leagues to influence the discussion. Some have called on Major League Baseball to move its 2011 All-Star game from Phoenix – just as the Super Bowl was moved 20 years ago when Arizona refused to recognize Martin Luther King, Jr. Day as a state holiday. Recent efforts have prompted Arizona Governor Jan Brewer to write ESPN on responding to the sports boycott requests, which she labeled as “misguided.”

Sports in America have become increasingly international, with players coming from around the globe. In fact, it is international players that dominate the roster of some of our major professional sports teams. The National Hockey League, for example, is made up of 80 percent of players who were born and raised outside of the United States. On the University level, a significant number of our colleges and universities actively seek international talent to gain a competitive edge. While these players may initially come to the United States either as a student-athlete or on a P-visa (a visa designated by immigration as a visa for professional athletes), these same athletes often seek permanent residence or citizenship to remain in the United States at the conclusion of their careers. As a result, we may see professional athletes and their teams play a significant role in shaping the immigration debate.
 

The Arizona legislature has already made several changes to its recently enacted immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). On the legislature’s last day in session, it passed changes to the law, which the Bill’s sponsor, Senator Russell Pearce, stated were intended to clarify that “the bill prohibits racial profiling in any form.”

Opponents of the Bill had expressed concerns about how crime victims or witnesses would be treated in light of the Bill’s requirement that law enforcement question individuals concerning their immigration status during any “lawful contact.” In an attempt to address this issue, the legislature amended the statute to require questioning only where there is a “lawful stop, detention or arrest.” Moreover, the legislature eliminated the word “solely” from the provision in the Bill, stating that law enforcement officials may not “consider race, color or national origin…” in establishing reasonable suspicion that someone is in the country illegally. Finally, the Bill was also amended to clarify that law enforcement officials responding to city-ordinance violations would be required to determine the immigration status of an individual they have reasonable suspicion of being in the country illegally.

Governor Brewer signed these changes into law on April 30, stating that she believed the new language, combined with the original wording of the Bill, gives the law "maximum ability to withstand legal scrutiny." These changes will become effective with the rest of the Bill on July 29, 2010.

The changes, however, have done nothing to stop the furor over the Bill’s enactment. The calls for boycotts of Arizona and its businesses have continued to increase in the week since the Governor signed the Bill and will undoubtedly have an impact on Arizona employers.

We will continue to follow these breaking developments.
 

The fervor surrounding Arizona’s new immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), has grown in the days since Governor Jan Brewer signed the Bill into law on April 23, 2010. The Arizona legislature adjourned on April 29, 2010, which means the Act will become effective 90 days later, July 28. The whirlwind of activity will likely increase in the period before the statute is scheduled to take effect.

On April 29, 2010, three separate lawsuits were filed challenging Senate Bill 1070. The first was filed by the National Coalition of Latino Clergy and Christian Leaders in U.S. District Court for the District of Arizona, alleging that the Act “creates state-wide immigration regulations [that are] independent from the existing federal system and clearly conflict[] with federal immigration law.” In addition, a well known Arizona civil rights lawyer filed two separate lawsuits in federal court (one on behalf of a police officer in Tucson and the other on behalf of a police officer in Phoenix) alleging, among other things, that the Act violates the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Leaders of three prominent civil rights groups announced they are planning to file a lawsuit to challenge the Act.

Meanwhile, calls for boycotts of Arizona businesses have spread and even gained momentum. Further, officials in San Francisco and Los Angeles have proposed that their cities not do business with companies in Arizona. Elected officials in other places, including St. Paul, Minnesota, have called for a boycott. Several groups have reportedly cancelled conventions planned for Arizona in opposition to the Act.
 

We will post updates as warranted.