Posted by Angelo A. Paparelli on October 25, 2007

Lawsuit Challenges Constitutionality of ICE Raids

Several Latino families and individuals, represented by the Puerto Rican Legal Defense and Education Fund and an international law firm, filed a class action suit on September 20, 2007, against the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security, charging that its agents unlawfully broke into and entered the homes of Latinos in the New York area without judicially issued warrants or other legal justification. The complaint describes armed ICE agents breaking down doors or forcing their way into Latino households in the pre-dawn hours without court warrants, terrifying children and adults, and looking for individuals who often do not even reside in the homes.

A press release announcing the suit is available at http://www.prldef.org/Press/Press%20Releases/ICE/Press%20Release%20-%20Latinos%20Challenge%20Constitutionality%20of%20Home%20Raids%20Conducted%20by%20ICE.pdf.

A related article is at http://jurist.law.pitt.edu:80/paperchase/2007/09/ice-sued-over-immigration-raids.php

--------
Posted by Angelo A. Paparelli on October 25, 2007

U.S. Adds Photo Verification, Sues Illinois on Verification Ban;Towns Rethink Anti-Illegal Laws

 

In late September, U.S. Citizenship and Immigration Services' E-Verify (formerly Basic Pilot) work authorization verification system added access to photographs. The photo tool will be available when a new employee presents an Employment Authorization Document (EAD) or Permanent Resident Card (green card) to complete the Employment Eligibility Verification Form (I-9). It allows an employer to compare identical photos: the individual's photograph on the EAD or green card against the image stored in USCIS's databases. The tool is intended to help an employer determine whether the document presented "reasonably relates to the individual presenting it" and contains a valid photo. Employers currently participating in E-Verify will be trained on the system enhancement through a mandatory refresher tutorial that launched automatically on September 17, 2007. New employers who registered after that date are learning how to use the photo tool through an updated E-Verify manual, tutorial, and memorandum of understanding.

Meanwhile, the Bush administration has sued Illinois to block a state law, to take effect January 1, 2008, that would prevent employers from using a federal database to check the work authorization of prospective employees under the E-Verify program. In a signal that the move is part of a nationwide effort, Secretary of Homeland Security Michael Chertoff said, "We will vigorously contest any effort to impede our enforcement measures." A spokesperson for Illinois Governor Rod R. Blagojevich said he signed the bill because of concerns about delays in responding to employer inquiries and a reported 50 percent accuracy rate. More than 23,000 employers are enrolled in the system, and 2.9 million employer inquiries were handled in the most recent fiscal year.

Also, a handful of towns and cities around the nation have begun reexamining their newly passed anti-illegal immigration laws. Riverside, New Jersey, previously enacted a law to penalize anyone who employed or rented living space to an undocumented person. Many mostly Spanish- and Portuguese-speaking immigrants fled the town, and the local economy began to suffer. Shops and restaurants that had immigrant employees and customers began to shut down and storefronts were boarded up. The town also had mounting legal bills resulting from challenges to the law that delayed other high-priority projects. In September, Riverside rescinded the law. "I don't think people knew there would be such an economic burden," said Riverside's current Mayor George Conard, who had been in favor of the original legislation. According to reports, it is unclear whether those who left will return any time soon.

A press release and fact sheet about the new photo verification capability of E-Verify are available at http://www.uscis.gov/files/pressrelease/EVerifyRelease25Sep07.pdf and http://www.uscis.gov/files/pressrelease/EVerifyFS25Sep07.pdf.

Employers can register online for E-Verify at https://www.vis-dhs.com/employerregistration/

The federal complaint against the State of Illinois is available at: http://www.epic.org/privacy/ssn/usvill_gov_092407.pdf

Posted by Angelo A. Paparelli on October 22, 2007

District Court Grants Motion for Preliminary Injunction Barring Implementation of New DHS “No Match” Rule

Hold off on Uncorking the Champagne

On October 10, 2007, the U.S. District Court for the Northern District of California granted plaintiffs’ motion for preliminary injunction preventing implementation of the Department of Homeland Security’s final rule concerning actions to be taken by employers who receive Social Security Administration (SSA) No-Match letters. American Federation of Labor, et al. v. Michael Chertoff, et al. (N.D., CA, No. C 07-04472-CRB, Oct. 10, 2007).

Plaintiffs, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), and the Central Labor Council of Alameda County, along with other local labor movements, originally filed an application for a Temporary Restraining Order (TRO) on August 29, 2007, with the U.S. District Court in California. The application was granted by the court on August 31, 2007, for a period of 30 days, and on October 1, 2007, was extended by the court for an additional 10-day period.

The final rule, entitled ‘Safe-Harbor Procedures for Employers Who Receive a No-Match Letter”, set forth procedures to be followed by employers in responding to a no-match letter issued by the Social Security Administration (SSA) identifying a discrepancy between name and social security number (SSN) information contained in SSA’s database and name and SSN information being used by an employer for tax and payroll purposes.

Under the final rule, employers would be given 90 days from receipt of a no-match letter (the “safe haven” period) in which to follow certain proscribed procedures to address the discrepancy, by either resolving and correcting the discrepancy, re-verifying the employee’s work authorization, or terminating the employee if the discrepancy cannot be resolved. Employers failing to follow the procedures contained in the final rule, would be subject to civil and criminal penalties and could also be charged with having had knowledge or “constructive knowledge” of the employee lacking work authorization (an allegation that, according to language contained in the final rule, would not be leveled against employers responding to SSA no-match letters within the proscribed 90-day safe haven period). On the other hand, employers electing under pressure to terminate employees within the 90-day safe harbor period, in order to avoid possible prosecution under the final rule, would also have been exposed to liability and charges of wrongful termination and employment discrimination by those workers terminated.

In criticizing the rule, the National Immigration Law Center, in a press release dated October 1, 2007, stressed that employers who currently receive SSA no-match letters are not required to take any action, and that such letters have never been construed as evidence of an employee not having permission to work in the U.S. As noted in the press release, “there are many innocent reasons for such discrepancies such as clerical mistakes, name changes due to marriage and divorce, and the use of multiple surnames that are common in many parts of the world”.

In granting plaintiffs’ motion for a preliminary injunction, the court voiced its own concerns regarding the likelihood of harm, not only to the plaintiffs, but to U.S. workers and employers generally, stating the following:

“As demonstrated by plaintiffs, the government’s proposal to disseminate no-match letters affecting more than eight million workers will, under the mandated time line, result in the termination of employment to lawfully employed workers. This is so because, as the government recognizes, the no-match letters are based on SSA records that include numerous errors. Moreover, the threat of criminal prosecution, (under the guise of a safe-harbor provision), reinforced by a directive that the employer who receives a no-match letter must follow the safe harbor procedures or expose themselves to criminal and civil liability, reflects a major change in DHS policy”.

District Court Judge Charles Breyer concluded that the regulation, if enforced, would have required an immediate and significant change in plaintiffs’ conduct which, given the number of no-match letters SSA was planning to mail out (approximately 140,000 such notices, pertaining to approximately 8 million employees), necessitated further consideration of the final rule prior to implementation.

While this is good news, employers should recognize that DHS and Immigration & Customs Enforcement (ICE) still have plenty of civil and criminal law enforcement tools to encourage compliance with the rules against unlawful hiring, even without relying on the enjoined no-match rule. The best advice is to review your employment-based immigration compliance practices and take whatever corrective action is necessary. Call Paparelli & Partners LLP if you need any help.

Additional updated information on the preliminary injunction may be obtained on the National Immigration Law Center’s website. The link to the website is: http://www.nilc.org/index.htm

--------
Posted by Angelo A. Paparelli on October 22, 2007

Angelo Paparelli Quoted in Workforce Management on "Halt of DHS No Match Rule"

Halt of DHS No-Match Rule Provides Employers No I-9 Reprieve Angelo Paparelli was interviewed by Mark Schoeff Jr. of Workforce Management on September 5, 2007 on the halt of The Department of Homeland Security no-match rule. The rule was to be implemented on September 14, but a federal judge halted mailing no-match letter packets from the Social Security Administration that were to include DHS guidance on the new rule.

A San Francisco judge has blocked a key element of a recent federal crackdown on illegal immigration, but that doesn’t mean employers can breathe easy.

On August 31, U.S. District Judge Maxine Chesney issued a temporary restraining order delaying the implementation of a Department of Homeland Security regulation forcing companies to either resolve within 90 days discrepancies between a worker’s name and Social Security number or fire the employee.

Paparelli was quoted on the ruling: The rule would be prohibited from going into effect as long as the legal proceedings continue—unless a court of appeals intervenes.

“This litigation could go on for years,” says Angelo Paparelli, a lawyer with Paparelli & Partners in Irvine, California, and president of the Academy of Business Immigration Lawyers. The AFL-CIO may be angling for such an outcome. It’s making its case to a court that has demonstrated sympathy to employees and unions.

In a previous case, the federal court ruled that a company had to have actual knowledge of an immigration violation, as opposed to being held accountable for something it should have known, Paparelli says. Regardless of what happens to the no-match rule, Paparelli advises employers to do a self-audit of their I-9 process. If a company is aware that it is illegally employing someone, they’ll be vulnerable to a government crackdown.“Employers are not going to be free from criminal or civil investigations and prosecution,” he says. “This is not a complete reprieve from the duty to comply with the law. Employers must make sure they’re diligent in employment eligibility verification and reverification.”Mark Schoeff Jr., Workforce Management Writer, “Halt of DHS No-Match Rule Provides Employers No I-9 Reprieve,”Workforce Management, September 5, 2007. Full article available at: http://www.workforce.com/section/00/article/25/09/54.html

Mark Schoeff Jr., Workforce Management Writer, “Halt of DHS No-Match Rule Provides Employers No I-9 Reprieve,”Workforce Management, September 5, 2007.Full article available at:

--------