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Vintage inscription made by old typewriterTerabytes of text have already been generated in the course of extolling or excoriating President Obama for his November 20 Executive Actions on Immigration.  The prolific foaming of bloviating mouths has mostly been prompted by the promise of deferred action and work permits for undocumented immigrants under the DACA and DAPA programs.  Surprisingly, however, his equally profound measures to improve the legal immigration system have been lost in the GOP’s ongoing Sturm und Drang over what they dub “Executive Amnesty.”

Among these legal immigration reforms, an almost overlooked November 21, 2014 Presidential Memorandum (“Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century“) invited the submission of individual and stakeholder recommendations to improve legal immigration.  If the Obama Administration were to embrace the best of the recommendations submitted in response, many good things would flow from this crowd-sourcing initiative.  Without involving or seeking the consent of Congress, the Administration could readily adopt a plethora of path-breaking innovations to our legal immigration system which would profoundly improve how this country welcomes and benefits from foreign strivers, entrepreneurs, scientists, students, investors and other worthy contributors.

As my colleagues, Gary Endelman and Cyrus Mehta put it recently:

At the end of the day, immigration policy is not only, or even primarily, about the immigrants but about how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.

The November 14 memorandum directed the Secretaries of Homeland Security and State to solicit proposals from stakeholders and the public to modernize the legal immigration and visa system.  The Secretaries of DHS and DOS would then evaluate the proposals so submitted in consultation with  several Cabinet members (the Attorney General, and the Secretaries of Agriculture, Commerce, Labor, and Education), and other federal officials (the Director of the Office of Management and Budget, the Director of the National Economic Council, the Assistant to the President for Homeland Security and Counterterrorism, the Director of the Domestic Policy Council, and the Director of the Office of Science and Technology Policy).  The official invitation to submit ideas took the form of a December 30 Notice of Request for Information, which allowed the submission of up to 30 pages of commentary by January 29.  The comment period has closed, and the proposals are now posted online for all to see.

Some of the most thoughtful suggestions, accompanied in many cases by convincing citation to legal authority, came from members of the Alliance of Business Immigration Lawyers (ABIL); members of the American Immigration Lawyers Association (AILA); a collection of 16 business-immigration stakeholder organizations (the 16); two individuals, attorney Nicole Kersey of Kersey Immigration Compliance (KIC), and Don Crocetti, managing member of Immigration Integrity Group, LLC (IIG) who formerly served as Chief of the Fraud Detection and Nationality Security Directorate (FDNS) of U.S. Citizenship and Immigration Services (USCIS); the American Immigration Council (the Council); the Society for Human Resource Management through its strategic affiliate, the Council for Global Immigration (CFGI);  the U.S. Chamber of Commerce (the Chamber); the International Medical Graduate Taskforce (IMGT); the Center for American Progress (CAP) and the Global Workers Justice Alliance (GWJA).

Here are just a few of the many recommendations (accessible through the hyperlinks in the preceding paragraph) which I believe would comprehensively transform and improve America’s decrepit immigration system:

Improve access to justice. ABIL, AILA and the Council urged the Department of State (DOS or State) and U.S. Customs & Border Protection (CBP) to grant every individual interviewed by a federal immigration official the right to the representation of an attorney (either  in person or by electronic means, but still at no cost to the government).  The right to counsel would extend to (a) visa applicants who are interviewed by a consular officer, (b) applicants seeking admission to the U.S. during secondary or deferred inspection who are interviewed by a CBP officer, and (c) petitioners seeking immigration benefits who are interviewed in the course of FDNS site visits by USCIS investigators.  ABIL also urged State and DHS to create a pilot system of binding review of decisions by consular officers to refuse certain categories of visas (all immigrant visas and nonimmigrant refusals under the E-1 treaty trader, E-2 treaty investor, E-3 Australian specialty occupation worker, H-1B specialty occupation, L-1 intracompany transferee and O-1 extraordinary ability visa categories).

Develop a single body of “immigration common law” and revitalize the advisory opinion process. ABIL proposed the creation of a single administrative tribunal to hear  appeals from decisions and adjudications by all federal immigration agencies, thereby consolidating the work of multiple federal appellate panels and reducing the  complexity and inconsistency of precedent and non-precedent immigration law decisions.  ABIL also proposed that State publish all of its now-secret Advisory Opinions which guide consular officers in visa determinations and that USCIS adopt a published IRS-style private letter ruling process whereby the party seeking written guidance on the legal consequences of a particular set of facts would receive a binding interpretation but other stakeholders might benefit from the agency’s non-binding guidance in analogous circumstances.

Prohibit relitigating prior USCIS decisions granting employment-based immigration benefits.  The 16, the Chamber, AILA and CFGI proposed that USCIS give “binding deference” to the agency’s previous grants of employment authorization whenever a petition seeking extension of the employer’s petition and of the worker’s nonimmigrant status involves the same employer, same employee, and same job duties, unless an adjudicator can establish, and articulate with specificity, fraud or clear gross error.  Such a change would necessarily reduce the burdensome and frequent requests for additional evidence (RFEs) and introduce a welcome measure of reliability, consistency and predictability to the process of extending the work permission of nonimmigrant employees.  To make this change, USCIS would need to adopt IIG’s proposal to speedily transition away from its “antiquated paper environment, supported primarily by legacy INS [Immigration and Naturalization Service] mainframe systems and databases with little to no interface or advance search or analytics capabilities” and instead it must “automate” “all USCIS systems and filing processes”.

Hasten the issuance of work visas, immigrant visas, green cards, work authorization and international travel permission.  Many commenters (including ABIL, AILA, CFGI and the 16) proposed that State and USCIS adopt a range of proposals which, in various ways, would (a) count only the principal worker and not the dependents when reporting and applying the cutoff date on available immigrant visas as announced in State’s Visa Bulletin, (b) recapture the hundreds of thousands of immigrant visas from prior years that were unused and thus squandered because of inadequacies in the way green-card quotas were allocated between DOS and USCIS, (c) allow for much earlier acceptance of employment-based applications for adjustment of status, thereby hastening the issuance of Employment Authorization Documents (EADs) and Advance Parole travel authorization, and (d) plug gaps in the grant of employment authorization by extending it for longer periods or on an interim basis to more categories, e.g., persons in U visa status, applicants for renewal of EADs, and persons holding employment-based work-visa status in nonimmigrant categories omitted by the 240-day period of interim employment authorization allowed in the Form I-9 (Employment Eligibility Verification) regulations. GWJA also urged that USCIS, upon approving an immigrant visa petition, automatically forward the notice of appearance (Form G-28) to State’s National Visa Center so that prolonged delays now experienced in the recognition of attorney representation would be eliminated.

Clarify and liberalize the rules on immigration successorship in interest. ABIL proposed that DHS and DOS adopt a successor in interest principle that would (a) expand the range of situations in which corporate restructurings are recognized for immigration purposes, thereby allowing uninterrupted employment authorization and the preservation of pipeline employment-based immigrant visa and adjustment of status benefits, and (b) dispense with current USCIS interpretations whereby immigration successorship requires an “assumption of all or some liabilities, whether they be solely immigration-related liabilities or liabilities associated with the occupational classifications of the particular beneficiaries affected by the change in corporate circumstances.”

Adopt improvements to promote investment, entrepreneurship, job creation and business innovation.  Many of the commenters suggested changes to spur investments, business activity, innovation and job creation.  CFGI proposed the creation of a “Robust Trusted Employer Program” which would allow faster and more streamlined approvals of requests for immigration benefits submitted by “any employer that can demonstrate a track record of compliance with applicable [immigration] laws.”  ABIL urged the Obama Administration to “create an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department.”  AILA and ABIL proposed that DHS “create explicit immigration protections and benefits for small businesses,” e.g., by (a) rescinding the Neufeld Memorandum (which effectively abolished the distinction, long recognized in precedent decisions that, for immigration purposes, a corporation is to be considered distinct from its owners), (b) clarifying that the customary attributes of start-ups and small businesses are not necessarily indicia of fraud, and (c) adopting in formal policy guidance and ultimately in regulations the formal recognition that the characteristics of start-ups as set forth in USCIS’s Entrepreneur in Residence training materials are acceptable examples of legitimate forms of business operations and activities. ABIL and AILA also proposed numerous improvements that should be implemented by USCIS’s EB-5 Immigrant Investment Program Office (IPO) in order to promote the IPO’s announced goals of enhanced transparency of eligibility criteria, speedier case processing and the safeguarding of EB-5 program integrity.

Enhance immigrant and nonimmigrant protections and promote immigration integrity. A number of commenters suggested that DHS and DOS should ease eligibility requirements or offer enhanced benefits to individuals seeking or holding a particular visa status.  IMGT offered a range of suggestions to improve the lot of foreign medical graduates (FMGs) including, among other proposals, H-1B cap gap relief for FMGs, clarification that J-2 dependents of  FMGs are not subject to the two-year, home-country, physical-presence requirement applicable to J-1 FMGs, and clearer and more expansive interpretations of (a) “affiliated or related” parties eligible for exemption from the annual H-1B quota, and (b) requirements for the physician national interest waiver. GWJA also suggested several improvements, including, for example, enhanced protections available to individuals who have applied for or hold U visa status, job “portability” benefits for H-2B workers, greater age-out protections for dependents in VAWA cases, and an obligation undertaken by DOS to provide more explicit statements of the actual grounds for a visa refusal and not merely uninformative citation to the general ineligibility ground of denial found at Immigration and Nationality Act (INA) § 214(b). CAP urged DHS and DOS to improve transparency and reporting of data on LGBT individuals who seek or hold refugee admission or asylum status. Don Crocetti of IIG suggested that USCIS automate immigration case processing and build “a person and organization centric data system complete with electronic filing and web-based interviews” — a system which “contains advanced and ‘Big Data’ analytics to support a proactive anti-fraud operation.”

Freeze I-9 and worksite enforcement until USCIS has decided all DACA/DAPA applications for work permission. Nicole Kersey of KIC, along with ABIL, proposed that the DHS Secretary cause U. S. Immigration and Customs Enforcement (ICE) to suspend and defer, on a temporary basis, worksite investigations and enforcement of certain employer-sanctions provisions of the Immigration Reform and Control Act (relating to the maintenance of Forms I-9 and the duty of employers to refrain from knowingly hiring or continuing to employ unauthorized workers).  The temporary freeze would end, they proposed, once USCIS certifies that it has decided all applications for work permission under the DACA and DAPA program.  The purpose of the proposed deferral of ICE enforcement, Ms. Kersey and ABIL explained, would be to avoid actions that might undermine the President’s goals of maintaining family unity in mixed-status households and encouraging eligible DACA and DAPA applicants to “get right with the law” and “come out of the shadow.”   These laudable Presidential purposes, the proponents maintained, would be jeopardized if ICE — by virtue of a worksite enforcement action — were to impose a duty on employers to fire unauthorized workers who may ultimately receive employment permission.

Improve Federal Immigration IT Infrastructure.  AILA suggested several IT enhancements, including USCIS acceptance of online payment of filing fees, standardization of web-published protocols and response times to email queries submitted to consular officers at posts worldwide, and permitting additional functionality in the “myUSCIS” Case Status Online query system by allowing access to the actual RFE or notices of intent to revoke or deny a petition issued rather than merely viewing a report that an RFE or notice has been issued (which must then await delivery by snail mail).  In addition, ABIL and AILA suggested that — in the words of the AILA comment — “As USCIS continues to develop ELIS [the USCIS Electronic Immigration System] and expand its functionality to other forms and uses, it would be in the agency’s best interest to reach out to vendors and large-scale users, including AILA, for regular usability testing and feedback.”  ABIL proposed a variety of additional IT suggestions:

  1. DHS (USCIS and CBP) DOL (the Office of Foreign Labor Certification (OFLC)) and DOS (the Bureau of Consular Affairs [BCA]) should work to achieve interoperability for users so that employers, petitioners and applicants for immigration benefits, lawyers, law firms and organizational stakeholders such as universities need not be forced to re-enter the same data into disparate, siloed systems;
  2. All possible questions in online forms that function as a database, such as the BCA’s DS-160, where distinct questions appear as determined based on earlier answers to prior questions, should be published and available in full with a cross-referencing of questions and answers by visa category so that the public, as contemplated by the Paperwork Reduction Act, can know in advance what information to assemble.
  3. All electronic forms should provide the opportunity to expand on or clarify an answer to any question on the form in data fields permitting unlimited entry of text, since many questions cannot be answered truthfully and fully with, for example, a simple “yes” or “no” reply. Many such questions require the application of fact to law and thus require an answer that is consistent with applicable law. As currently configured, these forms invite a later accusation by federal immigration authorities of, inter alia, a willful, material misrepresentation under INA § 212(a)(6)(C), a falsely made document under INA § 274C(f), or a false statement under 18 U.S.C. § 1001;
  4. The attorney for an employer (with authorization of the subject individual employee or family member) should be allowed to access and download the electronic I-94. As the CBP e-I-94 system now is configured, only the applicant for admission who is ultimately admitted, or his or her attorney, can access the database and retrieve the I-94. Many large corporations centralize the management of their foreign employee’s maintenance of immigration status through counsel. Without access to the e-I-94 system by corporate counsel, this process is severely impeded and the prospect of an inadvertent violation of the unlawful-presence 3- and 10-year bars could occur; and
  5. Online visa application[s] and [USCIS] immigration forms should allow the user to move from one screen to the next without completion of all relevant data requested in the screen. Often, some but not all information is not presently available. The online systems should also allow saving, downloading, and emailing partially completed forms so that information already provided need not be required to be re-entered again.

* * *

Since other commenters’ proposals were not summarized, and additional comments of the submitters identified above may have been given unintentional short shrift, I encourage all immigration stakeholders to spend as much time as possible reading the full set of comments and then, using all forms of social and traditional media, to focus public attention on the innumerable ways that DHS, DOS and the several agencies that administer federal immigration laws can optimize our nation’s legal immigration system.  It is broken; so let’s make the Administration fix it.

[Blogger’s Note:  Today we have a dandy guest post from the ever insightful, prolific and droll, Nici Kersey.  Don’t be put off by her introductory paragraphs.  There’s an immigration gem awaiting — one that employers, and the lawyers who counsel them, will not want to miss.]1006205_10200681805741298_2095751202_n

Gambling on Immigration at a Dangerous Intersection(Merry Christmas, Ninja Squirrel!)

By Nicole (Nici) Kersey

I run several days a week on the Air Force base where I’ve lived for the past 18 months.  I prefer to run on River Road, which has a river on one side and a golf course on the other and which leads from my house to a prison.  (Apparently, prisons and military bases are frequently co-located, perhaps in part because of the need for cheap labor to take care of golf courses, which are also frequently located on Air Force bases.)  Here are some things I have learned on these runs:

  1. People will try to hit you with golf balls.  They will find this funny.  They are probably drunk and are unlikely to hit you, but it will be unnerving, and you will learn to avoid the golf course area during the drunkest hours.
  2. Signs warning you about alligators will, at first, cause you to run your fastest miles in years.  Over time, you will begin to slow, hoping to actually see some evidence that alligators once inhabited the earth.  You will see a snake one day, and that is as exciting as your wildlife encounters will be.
  3. Until the day you see a meerkat, which you will chase and photograph.  But then you will figure out that it was just an Eastern Fox squirrel, which is basically a larger-than-normal squirrel wearing a ninja mask.
  4. The inmates will, at first, have an effect similar to the alligator signs, causing you to run faster and carry mace.  Over time, you will realize that they have little interest in you, and they are prohibited from even speaking to you.  You will eventually just wave hello to the prisoners and start to concoct wild plans for how you can help them escape from jail.
  5. Two things that you will never get used to:  running behind an active firing range.  (This will always make you run very, very fast.)  Ditto:  running under a C-130 that is landing.  You will manage to be within 20 yards of the end of the runway at least twice, and both times, you will nearly soil yourself.
  6. Every now and then, your normal running trail will be closed due to “explosive dog training.”  Causing you to wonder how, exactly, one trains a dog to explode and, if you succeed, why you even bothered with the training.

FullSizeRenderOkay, okay.  I’m supposed to write about immigration, right?  Here goes: when I run 4 or
more miles, I come to an intersection that used to cause anxiety:  turn left, you enter the federal prison; turn right, and signs warn you of alligators; turn around, and you have to run back through the golf course where the drunk people tried to hit you with balls.

Employers who are trying to decide whether to conduct a voluntary I-9 audit today face a similar intersection.  Turn left, they risk entering the federal prison in a way more “official” way; turn right, and they may lose valuable employees who are eligible for work authorization which simply hasn’t been granted yet.  (In this metaphor, the employees are getting gobbled up by the alligators.  Get it?)

Previously, employers deciding whether to undergo an audit needed to consider several factors.  Among them:  the cost of the audit, the risk that would be eliminated by the audit, whether the employer could take the time to correct violations discovered, and whether the business could survive the loss of any employees determined to lack employment authorization.  The new executive order adds a twist.  A number of employees who do not hold work authorization today may obtain employment authorization within the next 12-24 months.  This raises the question of whether now is the right time to conduct an audit.

If an employer discovers today that Bob presented fake documents when he was hired, and the employer confronts Bob, and Bob admits that his documents were fake and that he is not authorized to work, the employer must terminate Bob’s employment.  If Bob says he is not work-authorized today, but he is eligible for DAPA under the new executive order, the employer still must terminate Bob’s employment, even though – if the employer had waited a year to conduct the audit and confront Bob – Bob’s fate could have been much different.

So the question becomes whether employers would be wise – or kind – to wait until the new batch of DACA/DAPA beneficiaries have obtained employment authorization prior to conducting a voluntary audit.

If the employer waits a year or so, it can clean up its I-9s without the loss of as many valuable employees.  But if the employer waits a year or so and is, in the interim, inspected by ICE, the employer may face hefty fines and – in the most egregious situations – a prison sentence.

And it has become abundantly clear that ICE is not “chilling out” until the new batch of DACA and DAPA employment authorization cards are issued.  (ICE isn’t even chilling for the holidays, having issued Notices of Inspection this week.)  Who is most likely to be inspected?  Employers in “critical infrastructure” are high on ICE’s priority list.[1]  It also seems that employers who were previously inspected and issued a Warning Notice are high on the list, as are employers referred to ICE after an investigation by another agency (DOL, OSC, USCIS).  And those employers who are suspected of hiring unauthorized workers – knowingly or unknowingly – are at high risk of an inspection.  Employers at higher risk of inspections may not be wise to gamble by waiting to conduct an audit.

Employers may also consider geography in assessing their vulnerability.  Those in California are less likely to be fined for I-9 violations than those in Illinois (see page 7).[2]

So I understand the inclination to wait so that you can avoid the “alligators” that will gobble up your valuable employees.  But to avoid the alligators, you have to run through the golf course and risk being hit.  If you’re lucky, you’ll see a ninja squirrel or a tiny green snake.  If you’re not lucky, you may have to run through the prison yard, and not in a fun way.

Addendum:

Wait a second … this was supposed to be a holiday-themed blog post?  Yikes.  Okay.  So, one day I was running on River Road and listening to Vampire Weekend (for the purposes of this post, we are going to say that the song was “Holiday”) when an unidentifiable liquid dropped from a tree directly into my eye.  I became convinced that a squirrel peed in my eye.  The best thing to do when you think a squirrel has peed in your eye is ask your Facebook friends for advice.  They will call you Chicken Little, and your eye will be fine.  And if you still don’t feel like this post was holiday-y enough, here’s a gift:  an annotated Form I-9 to help keep you out of trouble.  Merry Christmas!

[1] “Critical infrastructure” is defined by ICE to include Agriculture/Food, Banking/Finance, Chemical, Commercial Facilities, Communications, Critical Manufacturing, Dams, Defense Industrial Base, Emergency Services, Energy, Government Facilities, Healthcare/Public Health, Information Technology, National Monuments/Icons, Nuclear Reactors, Materials/Waste, Postal/Shipping, Transportation Systems, and Water.

[2] But some employers in California are considering conducting self audits on an expedited basis so that they can terminate employees who lied at the time of hire about their employment authorization.  (Such terminations based on dishonesty may not be allowed if the employees have gained employment authorization under a law that took effect early this year.)

 

[Blogger’s note:  Here we go with another guest column from Nicole (Nici) Kersey who offers a witty, wise and worthy post on the inequities and inanities of the worksite enforcement scheme concocted by Congress in 1990, a flawed system of employer deputization of governmental functions largely maladministered by various agencies of the Executive Branch.  Worse yet for employers, the states too are getting into the act.  Witness last week’s California Supreme Court decision, Salas v. Sierra Chemical Co., which held that claims of undocumented workers who present false documentation during the I-9 process are enforceable against employers under state antidiscrimination and worker protection laws , despite the defense of federal immigration-law preemption  — at least until the employer receives notice that the worker is unauthorized for employment.  So the broken enforcement scheme creates ever more headaches and hurdles for employers.]

Baring My Teeth at I-9 Enforcement Inequalities

By Nicole (Nici) Kersey

I admit it.  I know more about quidditch than about soccer.  The World Cup holds little interest for me, aside from the occasional glimpse of impressive Chilean, French, or Honduran abs[1].  (And, lucky for me, I can skip the games and jump to VH1’s “Best Soccer Abs” contest to see the most rippling of 6-packs.)

dick-cheney-growling

So as the rest of the world holds its breath while these guys run up and down the field, apparently biting one another and causing Adidas to pull “teeth-baring” ads, I’ve been holed up in my office working and, for fun, binge watching Orange is the New Black.  I read the book before it became a series, but when my nearly 4-year-old daughter asked me (completely out of the blue[2]) – “Mommy, why are you probably going to die in jail?” – I thought I should study up.

The World Cup and the New Black both got me thinking about the assumptions people make based on appearances or accents.  In many ways, soccer and prison are great equalizers.  You can play soccer no matter what your size, gender, citizenship status or national origin.  And in jail, while race, gender, and age may divide inmates more dramatically, those who may never have come into contact on the outside become roommates (at least they do on tv), wear the same clothes regardless of wealth, and eat the same food.

In the immigration world, employers face a number of dilemmas every day, driven largely by the appearance or voice of employees or applicants:

  • When to ask if someone is authorized to work in the U.S.
  • Whether to ask what a job applicant’s immigration status is
  • Whether to refuse to sponsor a visa
  • When to refuse a document presented as proof of work authorization
  • When and how deeply to investigate a tip indicating that a worker or group of workers lacks work authorization
  • Whether to terminate a worker’s employment if the individual comes forward with a new SSN/identity and admits that he was previously not authorized to work
  • What type of document an employee must present to prove work authorization (and whether the employer can specifically ask for that document)

These are just a few examples that lead to seemingly awkward situations in which a recruiter cannot ask the applicant with the great French accent whether he’s from France or Canada; and an HR manager is warned not to tell the new intern that she needs to see his I-20, even when that’s the only document he could possibly present to prove work authorization.   Because of confusion about the proper questions to ask on a job application, employers find themselves rescinding job offers to new hires who turn out to be H-1B employees.

And employers who work hard to ensure equality, making no assumptions based on appearance, native language, a foreign-sounding accent, or citizenship status, face a serious and unjust risk:  if it turns out that those employees lack work authorization, the employer faces a greater likelihood of penalties for Form I-9 paperwork violations and increased fine amounts, even if the employer had no reason to know that the employees were unauthorized.

Under ICE policy, employers who would otherwise receive a Warning Notice for paperwork violations (avoiding fines), must instead receive a Notice of Intent to Fine (NIF) in “instances where unauthorized aliens were hired as a result of substantive paperwork violations.”  While this policy implies that the paperwork violation must have actually caused the employer to hire someone who was not authorized to work, in practice ICE need not prove causation: correlation is sufficient.  (If causation could be shown, one might expect ICE to charge the employer with a knowing hire violation instead of – or in addition to – a paperwork violation.)

Once the employer is on the hook for fines, ICE increases the base fine amount by 5% for each I-9 relating to an unauthorized worker.  (An increase is suggested by the regulations, though no specific percentage is set out.)

This leaves employers, particularly in the construction, hotel, manufacturing, and restaurant industries particularly vulnerable.  They’ve been effectively deputized and asked to enforce the immigration laws.  They are prohibited from discriminating based on citizenship or national origin.  They must accept documentation as proof of identity that reasonably appears to be genuine and to relate to the employee presenting it.  Yet if they make a substantive error on the Form I-9 (such as attaching copies of the employee documentation to the form instead of writing the data in Section 2; or failing to make the employee input his A# in Section 1 of the form), and the employee turns out to lack work authorization, the employer is at a high risk for high-level fines (again, even if the employer did not have any reason to suspect that the employee was not work-authorized).

An employer in another industry (such as the banking or consulting industry) is at a much lower risk, even with a high rate of paperwork errors, simply by virtue of the makeup of its applicant pool and the birthplace of its employees.  The employer is less likely to be inspected by ICE in the first place.  If inspected, it is more likely to receive a Warning Notice for its paperwork violations, and if fined, the fines will be lower due to the lack of unauthorized workers.

In the end, it seems that while employers are prohibited from discriminating, government policy encourages them to do so.

And now … back to the best abs contest, where Chile and Portugal are on even footing with the French.  Though when determining a winner here, I think it’s okay to take a foreign-sounding accent into account.

[1] The Spanish and Portuguese are in the running as well.

[2] Okay, so we took her to see Muppets Most Wanted, which has resulted in a much more detailed discussion of gulags, jails, thieves and burglars than I ever expected to have with my child.

sleepless.jpg[Bloggers note:  Today’s post comes from the vivid imagination and prolific keyboard of frequent guest blogger and immigration-compliance maven Nicole “Nici” Kersey who shares her introspectively humorous musings at almost a TMI level while informing us of anxiety-inducing Form I-9 issues that stress her (and likely most employers) out.  By the way, the photo image is not of Nici but of someone equally perplexed by gnawing I-9 questions]

Egads!  I-9 Questions that Keep Me Up at Night

By Nicole Kersey

After every social interaction in which I am a participant, I rehash the event to determine how many idiotic and/or offensive things I did and/or said. 

This rule applies to parties, meals, and even simple 10-second greetings as I pass someone in the hall.  I can spend days worrying about something I did, didn’t do, said, or didn’t say, prompting me to send an e-mail or text a week later to apologize to the person I thought I offended, only to find that the person has no idea what I’m talking about.  This makes matters worse, as I have to explain what I did, didn’t do, said, or didn’t say and why the thing I did, didn’t do, said, or didn’t say might have been offensive (and why it was, instead, hilarious).  I really hate having to tell people that I am funny. 

I’ve always been an anxious person.  As thoughts fly through my mind, I’ll catch a glimpse of one, and it will worry me, but by the time I realize I’m worried, I can’t remember what it was that caused the worry.  I have to press rewind on my brain to catch the thought, worry about it, and release it.

Every so often, I catch myself feeling worry-free.  When this happens, it causes me to panic, as I am certain that I’ve forgotten to worry about something.  (And I usually have.)

When you are friends with Angelo on Facebook, you see a number of memes from “Meditating Lawyers.”  A recent one caught my attention.  It read

If you don’t try to stop whatever is going on in your mind, but merely observe it, eventually you’ll begin to feel a tremendous sense of relaxation, a vast sense of openness within your mind – which is in fact your natural mind, the naturally unperturbed background against which various thoughts come and go.

Mingyur Rinpoche

So I’m making an effort to observe and accept my constant anxiety.  I recently had an opportunity to observe my own anxiety as Christmas card season came and went, and I didn’t send a single card.

Right after I got married, I was feeling all grown up and sent Christmas cards to everyone I could think of.  We still had our invitation list from the wedding, and all of the addresses were at our fingertips.  I did not enjoy sending the cards, and being somewhat self-aware decided then and there to never do it again. 

For someone who is already anxious, Christmas card season is hell.  First you have to pick the card.  If it’s funny or says Christmas on it, someone might be offended.  If you’re going to send a photo card, you have to plan in advance and choose the right photo.  If you’re sending a newsletter, you have to make sure not to offend anyone by leaving out some event in which he was involved.  You have to write funny and meaningful stuff.  Find everyone’s address.  Make sure not to omit anyone.  You don’t want your cousin to bring the card up at the next family gathering (because of course it would be conversation-worthy) when a distant uncle sitting at the same table didn’t receive one. 

But the stress of sending cards is replaced by the worry that I may offend people who send me cards by not sending one back.  We move a lot, so people sending cards send me a pre-card message asking for our new address, giving me an opportunity to feel guilty even before receiving the card. 

And what to do about those cards that others send to us?  Send a thank you/apology note back explaining why we don’t send cards?  Keep them forever?  I don’t feel like I can toss a friend’s family photo in the garbage.  So we have a huge box in our attic containing every Christmas card, wedding invite, birthday card, etc. that we’ve ever received.  If I’m ever on the Supreme Court, maybe these will be useful for whoever is in charge of curating the “Nici museum,” but otherwise I’m just starting down the path of becoming a hoarder.

The number one reason that I don’t do holiday cards is that I don’t want to set a precedent.  Once you’ve sent a mind-blowingly awesome card, you have to follow through next year with one that blows even more.

Last year I made the mistake of writing a holiday-themed blog post for Angelo.  And this year I did not do one.  Ever since the twelfth day of Christmas, I’ve been anxious about this.  Did my reader(s) (are there more than one?) notice that I didn’t do one?  Are they mad at me?  Offended?  Do they think that Angelo didn’t like what I wrote and chose not to post it? 

To make myself feel better, I’m providing a belated Christmas gift to Angelo and to you.  Here are my top ten simple and easy ways to avoid fines for I-9 errors.  These issues are common, contribute to my self-diagnosed GAD (Generalized Anxiety Disorder), and once aware of them, employers can easily (and cheaply) avoid them.

Top Ten Questions that Make Me Anxious (or Top Ten Easily Avoidable I-9 Errors)

 

  1. What’s an I-9?  Many employers don’t know what an I-9 is.  If you are one of them, find out.  Now.  And start completing them.  You are required by law to have an I-9 on file for every current employee in the U.S. who was hired after November 6, 1986.  You are also required to have I-9s on file for certain former employees, but if you’re hearing the term “I-9” for the first time, you can’t solve that issue.  Focus on the current employees, then call an attorney to schedule training.
  2. 2.       Don’t I only have to do I-9s for foreigners?  Uh, no.  You have to do an I-9 for every new hire (see page 3 of the Handbook for Employers) who works in the U.S.  It doesn’t matter whether the person is a U.S. citizen, a green card holder, a foreign student, your best friend, or your grandmother. 
  3. 3.       I track expiration dates carefully and reverify every time any I-9 document expires.  So I’m doing great, right?  No.  Make sure that you are only reverifying when you are required to do so.  You should never reverify an expiring driver’s license or green card (so long as the document was unexpired at the time the I-9 was completed).  You will usually only reverify when an individual’s employment authorization is set to expire or when he presented a receipt at the time of hire.  Call me or Angelo so that we can schedule training.  Getting this wrong can lead to an invasive, time-consuming, and potentially expensive audit by the Department of Justice. 
  4. 4.       What’s reverification?  Yikes.  If you hire someone who has temporary work authorization (for example, someone who has an Employment Authorization card or who is working on an H-1B visa) you have to update the I-9 when the employee’s work authorization is set to expire.  (See page 12 of the Handbook for Employers.)  The I-9 must always evidence continuing eligibility to work in the U.S.  Again, call to schedule training.  Not reverifying could lead not only to fines but, in a worst-case scenario, to prison. 
  5. 5.       It doesn’t matter if I’m a couple of days late, right?  Yeah, it does.  Not completing the I-9 on time is one of the most common mistakes employers make.  Tardiness is a substantive error, meaning that it can (and often will) lead to fines in the event of an inspection.  It’s an easy one for inspectors to identify, and immigration judges agree that tardiness is a reason to impose fines.  (See page 5 of the decision.)  Remember that the employee has to complete and sign Section 1 on or before the first day of work for pay and that you have to review original documents and complete and sign Section 2 by the end of the third business day after the first day of work for pay.   
  6. 6.       So shouldn’t I just have the employee date the I-9 using his first day of work (and then backdate it myself)?  Surely no one would ever know, right?  Wrong.  This is fraud.  It is often detected by government inspectors, and it can lead to a poo storm.  Avoid said storm at all costs.  If the I-9 is late, it is late, but at least you completed it (see #1).  And by completing it, you have started the statute of limitations, meaning that the government has 5 years to inspect your I-9s, find the error, and file a complaint against you.  If those 5 years pass without incident, you can no longer be fined for the tardiness. 
  7. 7.       I’m looking at my I-9s, and they look great.  The only problem is that a lot of employees didn’t check a box in Section 1 to indicate their status.  But they all presented U.S. passports and green cards, so their status is obvious, right?  Yes, their status seems obvious.  But that doesn’t mean that this is perceived as an “innocent” error by the government.  If an employee does not check one of the status boxes in Section 1, the employee’s attestation in Section 1 is deemed nearly meaningless by the government (and immigration judges have tended to side with the government on this).  And just to be clear, while the employee is the one who made the mistake, the employer is held responsible for making sure the employee completes Section 1 properly, so it is the employer, not the employee, who will be fined.  See page 15 of this decision.   
  8. 8.       I copied and kept copies of the documents my employees presented for I-9 purposes, so I have proof on file that they are authorized to work.  I don’t have to put all of the document information on the form, do I?  While it may seem silly, yes, you do have to transcribe the document information onto the form.  Make sure that all of the fields are properly completed and that you have signed and dated Section 2 of the form.  Again, you can be fined for failing to do this.  Take a minute and do it.  See page 9 of this decision.  
  9. 9.       There’s no way I’ve hired unauthorized workers.  I make everyone present extra documentation, so I’m absolutely sure that everyone is authorized to work.  How could I possibly be in trouble?  You could be in trouble for so-called “overdocumentation,” which is a form of discrimination.  Fines for this are equal to those for not having reviewed any documentation at all.  Make sure that you only require (and only accept) one document from List A or a combination of one List B and one List C document. 
  10. 10.   Social Security cards are easy, right?  List C document.  Bam.  I’m done.  Not so fast.  Social Security cards have become increasingly confusing.  Remember the following: 
    1. a.       Don’t accept a “restricted” card as a List C document.  If the card says “Not Valid for Employment” or “Valid for Work Only with DHS (or INS) Authorization,” you cannot accept it for List C.  It is probably a valid card, but you need to ask the employee to provide some other List A or C document instead.  See page 44 of the Handbook for Employers.   
    2. b.      Don’t accept a metal or plastic Social Security card.  These have never been issued by the government.  Note that these may just be recreations that employees had made so that they would be sturdy and could be carried in a wallet.  Tell the employee that he/she needs to present the original card or another List A or C document instead. 
    3. c.       Don’t accept a Social Security card “stub.”  This is the tear-off portion of the mailer that includes the employee’s address.  In the “olden days,” the stub was the same size and shape as the card and is easily mistaken for a card. 
    4. d.      Accept unsigned cards, so long as they appear to be genuine and to belong to the employee.   
    5. e.      Know that a print out verifying someone’s name and SSN is not a receipt for replacement of a lost, stolen, or damaged card.  See page 43 of the Handbook for Employers.   

 

Merry Belated Christmas.  I hope these tips are helpful.  And thank you for allowing me to move on and worry about something else.  To my friends and family:  watch out.  You may be getting Christmas cards from me in July.

 

P.S.  For those of you who are accustomed to a Cookie Monster reference, here’s a really awesome spoof on Catching Fire.  Wouldn’t want to disappoint.   

 

Chained and locked cash.jpg[Blogger’s Note: Once again, the wonderfully insightful, witty and quirky Nici Kersey — I-9 and E-Verify expert extraordinaire — offers the straight scoop on the new E-Verify “lock-down” feature.  Though she sometimes publishes unfounded rumors about me (let the record reflect, I’ve not begun a chauffeur service on the side), she kindly gave me a weekend respite from blogging to share with readers why the E-Verify lock “is a big deal!”]

E-Verify’s New Lock ~ Like it or Not, This is a Big Deal!

By Nici Kersey

At around 3:00 eastern time on Monday, my (obnoxiously self-important) inbox exploded.  Ping!  Ping!  Ping! it said.  Look at me!  I’m bringing you important messages about stuff!  Ping!  Ping!  Ping!

Who died?  I thought, then wished I could un-think.  Maybe it’s good news.  I’ve been selected as an extra for the next Hunger Games movie?  Or maybe Cookie Monster did something awesome on Facebook (again).

Nope.  This time, it was USCIS with an exciting announcement about E-Verify’s latest enhancement.

One e-mail was from USCIS.  The dozens of other messages were from colleagues, clients, and friends spreading the news.  It’s like E-Verify got implants, I thought, then wished I could un-think.

Yes, the most exciting news in my social circle (aside from new photos circulating of Angelo that suggest he may be starting a town car service) has to do with E-Verify.  I know that this is lame.  Despite the rare incidents (like one of my clients semi-publicly calling me “Chick Norris”) that make me feel hip and cool, I have embraced my nerdiness. 

Here’s the announcement.  (The E-Verify announcement.  Not the Paparelli Town Car Grand Opening announcement.)

Angelo towncar.jpg

The enhancement “enables USCIS to lock a SSN that appears to have been misused, protecting it from further potential misuse in E-Verify.” 

What does this mean?  It means that E-Verify is actually getting better at doing what it’s supposed to do:  verify employment authorization.  Since its inception, one of the biggest weaknesses of the system has been that it cannot detect identity theft.  So long as an employee provided someone’s real data, E-Verify would return an “employment authorized” result, even if that data belonged to the person’s brother, cousin, father, my daughter, or a complete stranger. 

Will that still happen?  Sure.  But not as often. It’s not yet clear what the criteria are for locking an SSN, which is why my implants analogy is appropriate:  Will the enhancement pass as genuine, actually improving E-Verify, or will it prove to be more trouble than it’s worth, getting in everyone’s way?

If 25 people suddenly get jobs in the Chicago area, and they all have the same name and SSN, the latest announcement suggests that E-Verify would lock that SSN and would require each employee who used it to either come forward with proof that he/she is the “Real Slim Shady” (viewer discretion is advised) or to effectively abandon his/her job.

But will it go too far?  Our bank locks my husband’s debit card every time he tries to make a purchase more than 5 miles from our home.  This prompts mass hysteria, as we move so frequently that the security questions he is asked by the bank seem like advanced existential philosophy questions.  The name of the street where your doctor’s office is located?  Neighbor’s dog’s name?  Your boss’s favorite holiday dish?  (I’m going to start answering every security question with the word Pumpkin.)

The e-mails from my colleagues were mixed.  One said, “This will be all kinds of fun,” dripping with sarcasm.  Most clients were excited about the news, though they aren’t looking forward to the increase in mis-matches that they will have to resolve.  All of my fake ID vendor buddies, of course, hated the news.  (Dear NSA, I hope you are well.  This is a joke.  Love always, Nici.)

Like it or not, this is a big deal.

It means that we are one step closer to a national ID card and a system in which we can “lock” our own SSNs and identities so that others cannot use them to obtain credit and/or jobs.

It means that people may find out sooner when their own identities have been compromised.  Calls to the FTC will probably increase. 

It confirms that the federal government continues to work toward enforcement and deterrence, even if comprehensive immigration reform really has died.  (We’re not getting any carrots here, just sticks.)

It proves that we are (still) moving toward a law requiring that employers use E-Verify nationwide.

It means that it will become more expensive to get a good fake identity.  Those ID sellers who care about their reputations (yes, their reputations for being really good criminals) will have to work harder to satisfy the market, and fake cards are likely to become more expensive.  (And there will be a greater demand for cheap, bad cards too, as people may have to buy several cards/identities before one works.)

It may also add to the increasing paranoia of people like my father, who looked into having OnStar removed from his vehicle due to his concern that the government might be using it to spy on him.  I implore you to not tell him about this, or my next visit home may find my parents cooking all of their meals over an open flame in the back yard. 

For employers, I offer the following suggestions:

–          If you already use E-Verify, consider a training session for your team to ensure proper use of the system and to update them on this new development.  Focus on non-discrimination training.

–          Review your immigration policies and update them as appropriate.

–          Make sure you have a protocol in place for handling “tips” about your employees’ work authorization (or lack thereof), as this is likely to lead to calls/e-mails/letters from the “Real Slim Shady” alleging that one of your employees is working under his name. (If your workforce is unionized, however, first check the collective bargaining agreement and talk to your labor counsel — Seyfarth Shaw’s are the best, and Angelo can introduce you.)

–          Continue to monitor E-Verify requirements.  Consult with immigration and labor counsel about the pros and cons of registering before it becomes mandatory.

* * *

Thanks for reading, and have a lovely Thanksgiving.

alien shadow 2.jpg[Blogger’s note: Today’s post comes from the prolific keyboard of Nici Kersey, a friend and colleague whom I number among the best in I-9 and E-Verify compliance issues. She writes about our shared reluctance to grow up (as I write this, I’m singing my anthem — a certain song from the musical, Peter Pan) and our mutual antipathy to phony depictions of immigration law in cinema and television. For me, my favorite immigration shows are the original Superman,My Favorite Martian, and Mork and Mindy.  As for film, I’ve blogged before on its ability to  influence the immigration debate. But enough of me.  HEEEEEEEERE’S NICI!]

When I put on a suit, I feel like I’m pretending to be a grown up.  My husband keeps reminding me that we are “getting older” (well, duh).  My friends say that my evolving taste for nonfiction (I’ve always read fiction, leaning toward young adult novels) can be attributed to my advancing age.  And I generally have no idea what my 13-year-old stepdaughter is talking about.

I’ve been married for 11 years; my ten-year college reunion was ages ago; and the lady at the cosmetics counter has started recommending anti-aging moisturizers.  My daughter will turn three in August.  I own my own business.  I still don’t feel like a “real” grown up. 

I’ve been an attorney for six years now, but I don’t feel like an attorney – or at least not the way I always imagined being an attorney might feel.  I don’t feel important; I don’t like carrying a briefcase; and I have never yelled “objection!” in court.  I am desperate to use puppets in my I-9 training.

I’ll be honest;  I feel most like an attorney when I’m watching TV.  I think “this must be what doctors feel like when they watch Grey’s Anatomy.”  (Yes, doctor friends, I think you sit around watching ER and Nurse Jackie, noting the gross inaccuracies.) 

Brothers and Sisters was, for the first several seasons, a favorite show of mine.  But then in the fourth season Sarah Walker’s French fiancée, Luc, whose visa was running out, suddenly won the green card lottery.  In the show, this meant that an envelope appeared  in the mailbox one day, and inside that envelope was a green card.  Problem solved.  “Objection!” I shouted at the television.  What crap.  He may as well have won it via a scratch-off ticket he bought on a whim at the gas station.

In Green Card, then-INS officers more-or-less stalk a couple who have committed fraud by marrying solely to obtain a green card (they, of course, fall in love “for reals” in the process).  Despite their newfound love for one another, Gerrard Depardieu’s character is deported – not because the marriage was entered into for the purpose of committing immigration fraud – but because he cannot remember the name of his wife’s face cream.  I can barely remember the name of my own (anti-aging) face cream.

One of the worst offenders is The Proposal, which boasts a cast including Sandra Bullock, Ryan Reynolds, and Betty White.  What was the most unbelievable part of this movie?  The fact that I have now seen it twice, having apparently developed amnesia after the first go-round.  In this flick, Sandra Bullock’s character forces her assistant, who has dubbed her “Satan’s Mistress,” to marry her to avoid being deported after the application to renew her visa is denied. 

Let’s pretend for a moment that denial of the extension petition would cause deportation proceedings to begin right away (as The Proposal suggests).  What happens next is extraordinary:  the new couple (formed moments before) walks into the local USCIS office, cuts to the front of the line, and asks to file a fiancée visa petition.  It’s not possible to just walk into the USCIS office (you have to have an appointment, and you have to go through security, and then you have to wait, and wait, and wait).  It’s also kinda difficult (read: pretty much impossible) to file a fiancée visa petition while you’re in the U.S., and even more difficult to file pretty much anything in person. 

The two are immediately granted an interview with a USCIS officer.  [Objection!  Objection!  Objection!]  From there, the movie is similar to Green Card, in that the main characters fall for one another (though in this movie, the development of these new feelings is harder to believe than in Green Card).  Their newfound love develops after flying from NYC to Alaska, and the USCIS officer who interviewed them follows them and attends their (impromptu) wedding.  Ah, yes – that’s how it’s done.  (Cough.)  I’ll try not to ruin the end for anyone who still wants to see it after this glowing review, but I will say that the magic solution here is even more unbelievable than in Green Card; at least in Green Card, the guy gets deported.

The Terminal is underrated; I like this one.  And the whole premise seemed unrealistic until the past month.  A man (Tom Hanks) boards a plane to the U.S. and, while in flight, a coup in his country results in revocation of his visa and voids his passport, making it impossible for him to enter the U.S. or return to his home country.  Tom Hanks’s character ends up living in the international terminal at JFK.  Fantasy?  Well, sure, immigration officials don’t usually just let you wander out of customs  if you’re not admissible to the U.S., and security might typically take issue if you start ripping things out of electrical panels, or maybe keep you from living in part of the terminal that is under construction.  But I certainly hope that Edward Snowden studied this film before hopping a plane to Russia. 

Much could be said about the episodes at the end of the first season and beginning of the second season of Will and Grace, in which Jack (Sean Hayes) marries Karen’s housekeeper, Rosario (Shelley Morrison) to avoid her deportation.  And about Crossing Over, a movie starring Harrison Ford that includes Ray Liotta as a corrupt immigration officer who arranges to trade a green card for sex but (see a pattern?) falls for the woman in the process.  

One movie that seems to get it right is The Visitor.  If you haven’t seen it, you should.  A professor (Richard Jenkins) who keeps, but apparently rarely uses, an apartment in NYC comes into the city to find the apartment occupied by a couple who have rented it from some sort of con man.  He decides to share the space with them rather than evict them.  Once you accept that, the rest of the movie is pretty faithful to the immigration system, as one half of the couple is arrested, then detained by immigration, at which point he more-or-less disappears into the system, being moved from one facility to another without warning, then deported without notice to his family.  This is a lovely, quiet movie about the emotional toll that the system can take. 

But The Visitor is the exception to the rule, which seems to be that movies and TV shows must use immigration law badly and only as a device or an obstacle.  

Why do TV shows and movies do this?  It could be because the writers don’t know better and no one thinks to ask an attorney (or someone who has actually won the green card lottery), but it’s probably because it is rare for real immigration law to translate into good entertainment:  it’s slow, and it’s technical.  Winning the green card lottery means winning a chance to apply for a green card; the whole process can take more than a year.  When the government suspects marriage fraud, it usually starts by requesting piles of documents and conducting an interview; again, we are talking about months and years here, not weeks.  And the government doesn’t care if the relationship has grown into a “real” marriage; the question is whether the marriage was entered into for the purpose of fraud.   

The show Army Wives had a plot line a couple of years ago that mirrored a case that I was handling.  Army Wives did a better job than most of showing how immigration law works, but it had to gloss over some of the technicalities.  I talked to an immigration attorney who had consulted with Army Wives on the technical aspects of the law, and she confirmed that the show had to cut things because (1) it would take too long to show how things actually work, (2) most people wouldn’t understand it, and (3) to make people like me feel like attorneys when we watch.  Okay, I added that last one.

Real immigration law seems so poorly suited for entertainment that I couldn’t even bring myself to write a whole blog post about immigration law, asking Angelo if I could write a “junk food” version about TV and getting old.  Don’t get me wrong; I love immigration law.  I love talking about it.  I have a blast presenting I-9 training (with or without puppets).  But as much as I’d love to star (or even have a bit part) on a TV show, chances are, no one is going to make one about my job any time soon. 

And as I have gotten older, I’ve found that most people aren’t dying to hire an attorney who feels important or loves carrying a briefcase.  Most don’t want me to yell “Objection!” in court, because they’d prefer to stay out of court.  I haven’t yet had a client ask me to make or use puppets, but I have a feeling that training will be more entertaining if it is presented by a furry blue woman with googly eyes.  Instead of real (or real-ish) characters’ lives being changed by fake immigration law, I’ll use outlandish characters and apply real immigration law.  How about a mash-up of Alf, E.T., and the LGMs from Toy Story as a new, literally green employee (who may or may not try to eat the cat)?  That would give a different meaning to the box on the I-9 that says “alien authorized to work” and create opportunities to train about non-discrimination.

Everyone likes a little fantasy.  And where immigration law is concerned, fantasy is a key ingredient if you’re trying to create entertainment. 

Maybe I hold onto my own fantasy about using puppets in my training to fight the stereotypes (learned from TV and movies) about “important” attorneys and their briefcases.  Maybe it is because I am not old.  But I have to admit that when my teenage stepdaughter teared up last night at the end of The Proposal because it was “just so romantic,” I sure didn’t feel young. 

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The New I-9:

Why Now When We Need Immigration Amnesty for Employers?

By Nicole Kersey and Angelo A. Paparelli

 

Irony was plentiful last week in Washington and around the country. 

One particularly hawkish Republican, Senate Minority Leader Mitch McConnell (who never met a war-on-terror strategy he disliked), glommed onto Senator Rand Paul’s filibustery droning against drones in protest of John Brennan’s nomination as new CIA director. 

Also last week President Obama met with religious leaders to promote “Commonsense [sic] Immigration Reform” as the “leaders expressed their concerns over the impact the broken immigration system is having on families throughout their congregations” — especially the ongoing deportation of persons eligible for legalization under comprehensive immigration reform (CIR).  

At about the same time, Jeb Bush, former Florida governor, out touting his new book Immigration Wars: Forging an American Solution, “aimed at conservatives who might have a hard time embracing the increasingly important path-to-citizenship,” is accused of flip-flopping on immigration.

Last week also witnessed the release of two noteworthy publications on immigration.  

One, a long read in the National Journal exploring immigration-law dysfunction and irony in the restaurant industry, asked the rhetorically ironic question: “When did business owners become the bad guys of the Republican Party?” The article does a good job of describing our ironic process for verifying employment eligibility: 

Restaurant owners will say, when asked, that they don’t hire illegal immigrants. They also say they don’t know of anyone on their staff who is illegal. They are very likely telling the truth. Employers aren’t allowed to ask about a prospective employee’s country of origin—that would be discriminatory. They are simply required to keep copies of a new hire’s identification on file with an I-9 form, a dizzyingly bureaucratic document that generally does nothing but collect dust. A new employee can offer up many types of documents for the I-9, some of them archaic. Simple mistakes are made. The lunch rush may be starting. And document forgery is big business. (Emphasis added.)

The other piece is a Forbes op-ed with the ironic assertion that giving amnesty to the undocumented is insufficient and that our government also owes them an apology.

All this ironic behavior foreshadowed a bombshell of irony, a veritable immigration drone dropped on all American employers and newly hired employees, the release on March 8 of a new Form I-9 (Employment-Verification-Eligibility) by U.S. Citizenship and Immigration Services (USCIS).  The agency projects that the new I-9 — consisting of seven pages of instructions to complete two pages of the form itself (up from the current one-page form) — will impose an annual compliance burden of $1.2 billion on businesses and workers, not to mention a yearly cost to the federal government of $11.5 million. 

Why now?

With the government straitened by sequester and the prospect for CIR never better, why did USCIS choose last week to drop the I-9 bombshell on business and labor?

CIR could well involve the mandatory nationwide rollout of E-Verify and the elimination of the redundant I-9 verification process. Just as faith leaders, with CIR imminent, are calling for a nationwide moratorium on deportations, the business community and immigration advocates for the undocumented should protest the introduction of a costly new procedure that will only cause the “silent raids” and game of gotcha to continue and may well prove unnecessary.   Notwithstanding the government’s unpersuasive reasons for changing Form I-9, noted below, the timing, charitably speaking, is ironic.

Why did the form change?

The government has indicated (see #55 of the Appendix to Form I-9, Supporting Statement, available here) that the form was changed because:

–          The old form “expired.”

–          The expiration gave USCIS an opportunity to implement improvements to the form.

–          Improvements (according to USCIS) include:

–          Adding “helpful” fields such as the employee e-mail address and telephone number

–          Revising Section 1 to make it “easier to read and understand”

–          Adding an area for a 3D barcode to “promote the modernization of USCIS forms”

–          Giving employers more space

–          Making the instructions clearer and easier to understand

Whether this was truly the most opportune time to make changes to the form is highly questionable.  Given that any CIR bill passing this year is likely to include changes to the rules employers must follow when verifying employment eligibility, it is inexplicable for USCIS to have revised the I-9 now.  Changes to employment verification in all versions of CIR would inevitably result in the need for a new form or no form at all (just E-Verify with a fraud-proof employee ID card that all workers, including citizens, must present): so why not simply re-publish the same form with a new expiration date?  USCIS doesn’t say.

Did USCIS adequately respond to public comments?

Digging around at www.regulations.gov (type in Docket ID USCIS-2006-0068 to find all of the documents and comments related to the new form) leads to a 30+ page document in which the government responds to public comments.  While this suggests that USCIS actually read the comments, the agency’s response confirms that little serious consideration was given to the many comments proposing meaningful improvements to the form.  The majority of suggestions that USCIS implemented are minor and mostly stylistic, but still important and burdensome to implement. (See, e.g., the comments of ABIL, the Alliance of Business Immigration Lawyers, which like those of so many others the agency largely ignored.) 

What changed?

The new I-9 form is so much more complex that the government anticipates a 21-minute increase in the amount of time it will take to complete. See pages 8-9 of this document. As noted, the form is now two pages long, with seven pages of instructions.  The List of Acceptable Documents still occupies a single page.   Aside from formatting and stylistic changes, there are also substantive changes:

  • The instructions are significantly more detailed, including a number of “clarifying” items to help employers avoid mistakes.  
    • Instructions indicating that border commuters from Canada and Mexico may use foreign addresses in Section 1 (but that all other employees must use U.S. addresses).
    • Confirmation that P.O. Boxes are not acceptable.
    • A statement that the SSN (for employers who do not use E-Verify), e-mail, and telephone number fields, are optional.
    • Instructions regarding which foreign nationals must provide passport information in Section 1 (see below).
    • The addition of instructions for minors and disabled employees.
    • In-depth instructions relating to the use of receipts for lost, stolen, and damaged documents.
    • More detailed instructions relating to deadlines for form completion, review and recordation of document information, reverification, and photocopying documents.
    • The form has been updated to look more “official” and to include the DHS seal; this, in combination with certain formatting changes, may help employees take the form more seriously, giving them a better understanding that this is an official government form that is being signed under penalty of perjury.
    • New fields have been added for employees to record telephone numbers and e-mail addresses.  These fields are optional.  The government has indicated that many commenters praised the addition of these fields and that they may make it easier to contact employees in the event of E-Verify tentative nonconfirmations.
    • Terminology has changed in an attempt to make the form more user-friendly, reflect a better understanding of cultural norms (“Family Name”), and to make fields more gender-neutral (“Other Names Used” instead of Maiden Name). 
    • Fields have been added for certain foreign nationals to provide passport information in Section 1 of the form.  This relates to CBP’s plans for automation of the I-94 card.  Only those foreign nationals who obtained their I-94 documents upon entry to the U.S. (as opposed to having received a tear-off I-94 card as a part of a USCIS approval notice) should provide this data.  Others are instructed to write “N/A” in these fields.
    • The signature box for the employee has been improved to prevent employees from signing outside of the box.
    • In most cases, the instructions indicate that fields that do not apply to an employee (or where employees choose not to provide optional information) should be marked “N/A.”  While the government may find such instructions helpful, they actually create more opportunities for employers to find themselves making “mistakes” and worrying about possible fines for noncompliance with seemingly arbitrary rules.
    • “Alien #” has been changed to “Alien Registration Number/USCIS Number.”  For many, this causes confusion.  Let us make it clear:  the numbers are the same, but some government-issued documents use different terms to refer to the same number.
    • A 3D barcode box has been added to the form.  This is a mysterious box, as it is unclear what the government plans to do with it.  All indications suggest that the government may create a “smart” I-9 that employers can complete electronically, and that the barcode may allow for electronic reading of the form data.
    • A stop sign (yes, like the traffic sign) has been added between Section 1 and Section 2 to help prevent employees from completing Section 2 of the form.
    • Additional dedicated fields for recording “extra” List A documents have been added.  These fields may prove helpful to employers who previously struggled with the correct ways to document work authorization for foreign students, certain aliens authorized to work, and lawful permanent residents who have not yet received their green cards.  They may cause confusion, however, for others.  It is still not clear which document should be recorded first, second, or third.
    • The employer’s attestation statement has been changed somewhat.  It makes clearer to employers that they are not necessarily attesting to the employee’s start date (which is helpful when an employee is scheduled to start work in the future, preventing employers from concerns about attesting to something that has not yet occurred).
    • Section 3 has been changed to “Section 3, Reverification and Rehires” to make clear that there is no requirement that employers update the form for employee name changes.  Recording name changes may continue to be a best practice, but only if handled in such a way as to prevent document abuse claims (requesting documentation for I-9 purposes in connection with a name change may be risky).
    • The Lists of Acceptable Documents have been updated to make the rules regarding “restricted” Social Security cards clearer, specifically stating that employers must not accept cards that say “not  valid for employment,” “valid for work only with INS authorization,” or “valid for work only with DHS authorization.”

What should employers do?

USCIS has indicated that employers should begin using the new form immediately but has allowed a period of 60 days for employers to make the business-related adjustments necessary to begin use of the new form, effectively providing a grace period.

With that somewhat clunky guidance, we suggest that employers do the following:

Consider waiting to use the new form until you take time to:

  • Read and digest the revised M-274 Handbook for Employers, available here. 
  • Update your company policies and protocols to reflect changes to the form.
  • Provide training (preferably from a competent immigration attorney) to the individuals responsible for completing the form to ensure that they are aware of the changes and are equipped to properly implement them. 
  • Anticipate questions and issues that may arise.
  • Be ready to fix the foreseeable mistakes that are likely to arise.
  • Check with your electronic I-9 software provider (assuming you no longer use paper I-9s) to see that the new form is available, and ask your immigration attorney to review the new form in a test environment to ensure that it complies with all of the relevant rules and regulations.

* * *

fireworkssam.jpgSen. John McCain, whose somersaults on immigration are just as nimble and ironic as those of Jeb Bush, chastised Sen. Paul’s filibuster, calling it a “political stunt” meant to “fire up impressionable libertarian kids in their college dorms.” No one, however, can really say what USCIS, in its bureaucratic wisdom, meant to accomplish in dropping the new I-9, an even more dizzying and ditzy document than the current form.  

Perhaps, Sen. McCain will persuade his “Gang of Eight” compadres to rescue U.S. employers with an immigration amnesty on I-9 paperwork violations. Meantime, unimpressionable, all too jaundiced employers and their immigration lawyers, stoked by the new I-9, will muddle through the IRCA squeeze until Congress drops the irony and acts responsibly on CIR.

[Blogger’s Note:  Today’s post brings a bit of holiday cheer from my colleague and I-9 expert, Nicole (“Nici”) Kersey.  I want to publicly thank her for allowing me a Christmas break from blogging, and for the delicious chocolates.

Also, there’s still time to nominate Immigration’s Winners and Losers for the 2012 Nation of Immigrators Awards — The IMMIs. 

Tweet your nominees on Twitter at #2012IMMIS or email me.]

All I Got for Christmas Was a Crumb-y Immigration Compliance Checklist

By Nicole Kersey

Cookies for Santa.jpg

I was recently asked to provide a single tip/piece of I-9/E-Verify advice for employers as part of a holiday-themed post for another blog.  I was happy to do it, but I felt like a kid sitting on Santa’s lap being told that I could only ask for one gift.  If you’ve ever been in my closet, well, that’s creepy.  But you would know, from the fact that I buy the same shirt in 3 different colors, that I am not good at choosing just one of anything.    

So when Angelo Paparelli asked whether I might give him the gift of a week off from blogging (he didn’t know I’d already sent him chocolates), I first wrote a lengthy piece about the day that I accidentally shaved off my eyebrow (then drew it back on with purple eyeliner), but I couldn’t find a way to make the story relate to immigration.
 
Then I realized I was in that rare “wishing for more wishes situation.”  I guess that makes Angelo the genie.  Or Santa?  I’ve mixed metaphors again.  D’oh!  (Dough?) 
I guess we will be leaving metaphorical cookies out for Santa this Christmas Eve.  (Smart cookie, tough cookie … I plan to milk this for all it’s worth.)
Tough Cookie.jpgSo my holiday gift to you:  Ten of my greatest tips for avoiding liability for immigration-related violations.  [Yes, I know it is one of the worst Christmas gifts ever, but I’m not rolling in dough, so that’s the way the cookie crumbles.  And if you are my 2-year-old daughter and have suddenly developed the ability to read, do not fear (you smart cookie, you)!  I splurged on something a little more fun for you.]
  1. Provide mandatory annual I-9 training to everyone involved in the I-9 process.  This is the least expensive and most effective way to limit liability.  Invest in good training by an attorney with I-9 expertise.  See here for more.  
  2. Don’t make the mistake of assuming that, because you know you don’t employ any unauthorized workers, you don’t face much risk in the event of an ICE inspection.  I have handled cases in which ICE found zero unauthorized workers and imposed crippling fines for paperwork violations.  I’ve also handled cases in which more than half of the workforce was found to be unauthorized, and no penalties were imposed.
  3. Do not assume that your I-9s are perfect.  In my experience, the employer with perfect I-9s is a myth.  In all likelihood, you have some I-9 errors in your (actual or virtual) filing cabinet.  The key is finding out how much risk you face then doing a cost-benefit analysis to determine the appropriate level of remediation.  
  4. Make sure you have a strong immigration compliance policy in place, that the policy reflects your corporate culture (a cookie-cutter policy is better than nothing, but the best policy is one that requires compliance and works for you), and that the policy is Thumbnail image for Cookie cutters in color.jpgreflected in your culture (read:  actually follow it).  Ensure that team members are given responsibility for relevant aspects of the compliance policy and that their annual review process includes consequences for ensuring compliance (or for failure to do so).  In the event of an ICE inspection, ICE may ask to see a copy of your policy.  Having a good policy in place may help you to prove that any mistakes could be attributed to a “rogue” manager (and may thus help you avoid liability).  
  5. In addition to a compliance policy, develop an investigation response protocol.  This ensures that all team members know what to do & who to call (other than Ghostbusters) in the event of an ICE inspection or other immigration-related government site visit.  For more, see here.   Also consider sending Angelo a copy of Ghostbusters for Christmas [Editor’s Note:  Please don’t!]; rumor has it, he has never seen this snickerdoodle of a film.  
  6. Talk to an attorney to do a quick review of your operations to ensure that you are in compliance will the relevant E-Verify laws. Do not assume that, because you haven’t heard anything about a law affecting you, you aren’t required to use E-Verify.  A number of E-Verify laws, rules, and regulations have taken effect in more than a dozen states, and depending on the language of the law and the number of employees you have, you may risk losing your business license if you fail to use E-Verify.  
  7. If you’re not required to use E-Verify, consider using it anyway.  There are serious pros and cons to consider, but you get brownie points (yeah, yeah, I know they’re not cookies, but they are relatives, and Christmas is all about family, right?) with ICE for using it, and if you have any paperwork errors lurking in your I-9 filing cabinet (see #3:  you do), using E-Verify may help you avoid fines.  
  8. If you are involved in a merger, acquisition, or other corporate reorganization, raise immigration issues early.  Ask me for a due diligence checklist.  I-9 liability can affect price and even kill a deal.  If one of the companies involved in the transaction uses an electronic I-9 software program, the fate of the electronic I-9s must be determined early (will the newly formed company keep the electronic I-9s, use the same software?).   “Regular” immigration issues should also be discussed.  To the extent that employees are working under employer-sponsored visas or are in the middle of an employment-based green card application process, the employers must determine what (if any) paperwork must be filed (and when) to ensure that the employees do not lose their work authorization.
  9. Don’t be “e-terrified,” but be cautious. Electronic I-9s and E-Verify can improve compliance, but a flawed electronic system can create greater risk than flawed paper I-9s. Understand that the process of “going electronic” may be a time-consuming task. If you do it right, it will be worth the time and effort.  See this article for more details.  
  10. Watch this video.  It is about cookies.  It has nothing to do with immigration.  (Well, that’s not entirely true.  Frank Oz (voice of Cookie Monster) was born in England and immigrated to the U.S. when he was 5 years old.)  Unless you are the Grinch or a close relative, it will make you smile.  And “smile and be nice” = some of the best legal advice I’ve ever heard.   

Merry Christmas!


nici.jpg[Blogger’s Note: Nici Kersey, my colleague at Seyfarth Shaw who directs its Immigratio​n Compliance Center, offers another distinctive and entertaining guest post.  (Her earlier posts can be found here and here.)

Today, Nici (on the right in the photo [the infant on the left is from a Hollywood casting agency]) shares the stories behind her resume, blaming the government for the fact that she now harms the same people she set out to help.  I can relate to Nici’s angst, as I noted in “The Distressed Bearer of Bad Immigration Tidings.”

There are of course so many immigration stories, as I noted in my post, “Telling Immigration Stories,” which talked about the power of narrative as a way of humanizing immigrants.  That post also discussed the award-winning book — Green Card Stories — which masterfully depicts the personal journies of 50 immigrants to America. The back story on Green Card Stories is that it was produced with help from members of the Alliance of Business Immigration Lawyers, who urged their clients to allow their stories to be revealed as a way of inspiring others on the journey to achieving the American Dream.  

Perhaps, the Editors of Green Card Stories, Laura Danielson and Steve Yale-Loehr, might be persuaded to launch a companion volume describing how 50 immigration lawyers chose (or more likely, stumbled upon) immigration law as a career.  Nici’s quirky story is certainly worthy of inclusion.] 

A note from Nici:

Angelo has graciously invited me to post here a couple of times, and I know that my topic and style differ vastly from his.  My topics are less timely (this one is about things that happened as many as 15 years ago), and my posts tend to be more about me than about immigration.  (I admit to being relatively self-centered.)  I’m also probably one of the least political people you’ll ever meet.  (Except for my Fry Okra, Not People t-shirt and my Let a Lady Lead button, you’d be hard-pressed to find any evidence of my political leanings.)  Still, I hope you enjoy this as a bit of thoughtful fluff to soften the space between Angelo’s always sharp and generally hard-hitting posts. 

What Fried Okra, F.A.O. Schwartz, Staplers, and Immigration Have in Common

By Nicole (“Nici”) Kersey

The other day, I received a phone call from a client.  He started:  I know how you feel about undocumented workers, but ….  (Well, he didn’t use the word “undocumented.”  He said “illegal.”)  And I thought:  Really?  I don’t think you do.  I told him as much, saying that, despite the advice I have to give my clients, I have nothing against undocumented workers.  In fact, they are the reason I do what I do.

My job requires me to get people fired from their jobs.  Often, the people getting fired are long-term, trustworthy employees who work hard and do their jobs well.  But they may be using someone else’s SSN or a fake green card, and once that comes to light, my duty is often to recommend that their employment be terminated. 

These workers are the same people I set out to help when I first thought of attending law school.  Yes, when I hear the terms “sell out,” “traitor,” “turncoat,” or “double agent,” I can’t help but think of the ways in which they may apply to me.   (I like double agent the best, because it’s the most dramatic, and I envision myself wearing a pretty bad-ass costume.  Though turncoat might lead to more Academy Awards, as those tend to go to the period pieces.)

But, in part because this is for Angelo’s blog, and in part because it’s true, I blame the government for my defector/deserter status.

Either way, I would be working with kids:

As a freshman in college, I applied for a summer job at F.A.O. Schwartz in Indianapolis at the Circle Centre Mall.  I was hired and scheduled to report just after classes let out.  I never started that job.  I had thought it would be fun to spend the summer in a toy store, though I’m sure the actual experience would have differed somewhat from what I imagined, which involved Tom Hanks and a giant piano.

Before the summer began, I received a phone call from my high school Spanish teacher.  (This was an actual phone call on what we now refer to as a land line.  Mike Maxwell called my parents’ house, and my parents relayed the message to me.  Then I had to key in a special code to make a long-distance call from my dorm room to call him back.  Cell phones existed, but walking around a college campus was a different experience then.)

Mr. Maxwell asked if I had a summer job yet, and I was excited to tell him of my toy store plans.  He quickly told me that I would not be working at F.A.O. and instead needed to make a phone call to the Indiana Department of Education. 

Crap, I thought, more long-distance charges.

For the next four summers, I worked for the Indiana Department of Education’s Migrant Education Program.  The program employed mostly college students with strong Spanish language skills.  We were paired up and sent off to travel around the state and tutor the children of migrant workers from Texas and Mexico.  The purpose of the program was to help these children, who spent much of the school year following the crops (melons, corn, beans, and tomatoes in Indiana; blueberries in Michigan, strawberries and citrus in Florida, etc.), to keep up in school. 

To be honest, I spent a large part of those four summers in the car.  I teamed up with Jill, and together we covered the southern half of the state.  We frequently spent four or more hours driving each day.  We were paid (more than minimum wage!) from the minute we left home until we returned in the evening, and we were reimbursed for mileage.  It was fantastic.

The families we worked with insisted on feeding us, and the food was the kind of authentic Mexican food that you can only get in someone’s home.  The kids were sweet and eager students, and I was grateful for the job.  Almost every family gave us melons, straight from the fields.  I did not worry then, as I would now, about being charged with possession of stolen fruit.  I proudly presented the melons to my mom, who occasionally kept one but re-gifted the rest.  (Jill and I probably could have supplemented our income with a road-side melon stand, but we were not particularly entrepreneurial at the time.) 

Side note (yes, I know this whole thing is made up of side notes and parentheticals):  Once, a family filled our whole backseat with melons.  I was paired with Andy that day, and he indicated – in Spanish – that he “wanted all the melons,” when he meant that he “liked all kinds of melons.”  We all had a laugh, but despite our attempts to clear up the confusion, we drove away that day in a car that would forever smell faintly of overripe cantaloupe.

It all comes back to immigration:

While my job was to teach math, science, history, geography (I pretty much avoided teaching geography; the kids were better off that way), and English to the children, their parents seemed to assume that we had a deep understanding of immigration law.  They asked, again and again, what papers they needed to file to “get legal.”  They asked where they could get help.  The brochures we had been given by the DOE to address these questions were generally unhelpful, as there was really not much that the workers could do.

Each summer, the state held a conference on migrant workers, and I was always interested to hear what the speakers said about immigration.  According to one speaker, 2/3 of the migrant workers in Indiana were authorized workers.  Looking back, I don’t think that could possibly have been accurate, but I was happy to repeat the statistic to anyone who complained about my helping “those illegals.” 

One thing that the speakers consistently said when asked what could be done to help the workers “become legal” was, basically, nothing.  Using the H-2A agricultural worker program was too slow and too expensive, and so the vast majority of farmers simply used the workers who showed up year after year.  Except in rare circumstances, these kids’ parents were, for lack of a better term (or for my lack of willingness to come up with one) screwed. (Many of the kids themselves had been born in the U.S., so they may now be able to file petitions for their parents.  But at the time, the kids were seven to 13 years old.  If they had been any older, they’d have been in the fields with their parents, not sitting and studying math with me.)

At the end of each conference, there was a drawing for door prizes.  Red Gold always provided gift boxes full of tomato products (picked and canned by the migrant workers), and I always wanted – very much – to win one of these door prizes.  I never did.  (I still don’t know why the idea of a large box of ketchup and tomato sauce was so appealing to me, and it has been suggested that I delete this whole paragraph, but I chose to leave it in as an experiment — to see whether Red Gold, or anyone else, sends me tomato-related gifts after it is posted.)

I was pretty much doomed to work in immigration:

When college ended, and my summers with the DOE were done, I spent a brief period thinking that I would work in the theater.  That (surprise, surprise) didn’t “stick.”  And soon I got married and moved to Tacoma, Washington, where my husband, then a Lieutenant in the Army, was stationed at Fort Lewis.  It was 2002, and the job market was not great for someone with degrees in Spanish and creative writing.  I started leafing through the phone book, trying to find someone who might be looking to hire a responsible Spanish-speaker.  I stumbled upon a non-profit “immigration assistance center,” and was shocked to be more-or-less hired over the phone.

At the center, we saw walk-ins and took appointments, preparing family-based immigration petitions for those who were eligible. In most cases, however, we charged a small consultation fee, listened to sympathetic stories, and told our customers that we were very sorry, but there was simply nothing to be done.

I also recall being reprimanded for stapling papers the wrong way, which I still don’t understand.  (I was shown the “right way” a number of times, but I never grasped the difference.  I’m sure my employee file has something in it like “incompetent at stapling.”)

How I almost ended up on the other side:

During my time at the center, I applied for a number of other jobs, some involving the theater, and others relating to immigration.  I ultimately landed two:  one as a passport specialist at the Seattle Passport Agency and one with INS as an enforcement officer.  These jobs took a lot longer to get than did the F.A.O. Schwartz position, but they ended the same way – I never started either.

The INS job had taken nearly a year to get.  The FBI had visited friends, family members, neighbors, teachers, and professors to make sure I was not a traitor, turncoat, or double agent.  I had undergone the most extensive physical in my life.  (I was told not to eat prior to the tests, then asked to do a series of strenuous tasks – as many sit-ups and push-ups as I could, running as fast as I could, etc. – then had about a gallon of blood drawn.  It was while I watched the technologist draw vial after vial of blood that everything became pixilated, then went black.)  I was sure that I had failed the physical (as INS officers probably should not faint when chasing down would-be “illegals”), but I ultimately received a congratulatory letter, indicating that I would be assigned a training date in the coming months.

Then I received a letter explaining that INS was becoming part of DHS, and that if I wanted to work for DHS, I would have to start the application process anew.  I was a persistent person, but it seemed that DHS treated those applying for jobs much like those applying for immigration benefits – and I was afraid of having my blood drawn again – so I decided to work for the Department of State instead.

I accepted the Department of State job, but a few weeks before I was to start, my husband informed me that we were being transferred (PCS’d, in Army lingo) to Fort McPherson in Atlanta.  And that’s how I ended up not working for the government.

After we moved, I was lucky to find a position as a legal assistant at a law firm.  The law firm?  Seyfarth Shaw.  And I’d be working – gasp – in the immigration group.  My once-and-future boss (Jim King) swears that I worked as his assistant for a couple of years.  But it was only slightly more than six months.  I wonder now whether it was my incompetence at stapling things that made this period seem so much longer to him …

So I up and went to law school:

Before starting at Seyfarth, I had applied to law schools; I vaguely recall that my applications – like every law school application ever submitted – said something about my desire to help people.  (I know for a fact that I wrote a fair amount about elephants, diminutives, and contagion – but this story has already gone on for far too long to go into detail.)  The people I had in mind were the migrant workers in Indiana and the undocumented people in Tacoma who I had been unable to help.

During law school, however, and after I began to practice law, it became clear that being a lawyer would not dramatically change the fact that I could do nothing – or almost nothing – to help the undocumented farm workers or the people who had simply come to this country to make their families’ lives better, or safer, or easier.  Despite the many ways in which law school is like Hogwarts, being a lawyer did not mean that I could magically change the law.

At least at first, my job as an associate in the immigration group at Seyfarth allowed me to “help people” and to alter their lives through legal immigration.  I was obtaining H, L, TN, O, and even R visas.  Filing PERM applications.  Responding to RFEs.  And I was able to do a fair amount of pro bono work, even managing to help a couple of “those illegals.”

Then I began to specialize in compliance work, focusing mainly on I-9s and E-Verify.  I enjoy this work.  I help keep businesses from facing massive risk due to paperwork violations, and this means that I get to truly partner with my clients to build policies and practical solutions for their businesses.

The downside, however, is that I also face situations, almost daily, in which I advise a client to terminate the employment of an individual who lacks work authorization.  I spot fake green cards and tell my clients that they have to let the employees go.  But she’s my best worker, they say.  She’s been with us for 20 years.  She’s like family.  Isn’t there anything we can do? And I have to tell my client that we can look at the employee’s circumstances, but that in all likelihood there is nothing that can be done.

I love my job.  And I help my clients save boatloads of money by providing training and completing audits of their I-9s.  But it is hard – extraordinarily difficult sometimes – to know that instead of helping the migrant farmworkers, the cooks, the factory workers, the housekeepers, and the construction workers, I am a key player in their loss of jobs. 

And while I sometimes feel that I have let them down, I have to remind myself that I would try harder, do more – if only the immigration laws provided a path to legalization.  I know that it doesn’t always have to be one extreme or the other (get them green cards or get them fired), but short of quitting my job and helping people make better fake green cards (I think I might have a talent for that!), I’m not sure how to help.  I have not let go of my hope that the government will some day create a way for me to help the people I originally set out to assist.  It would be lovely, one day, to be able to say: Yes, there is something we can do.  This is how we start.

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cheese wedges.jpg[Bloggers Note:  Today’s offering is a Guest Post by Nici Kersey, who recounts memories as a child and their lasting impact, even on her practice of immigration law.  For a similar recollection of government handouts from my childhood, click here.]

Government Cheese

by Nici Kersey

My first memory of “the government” involves government cheese.  My great-grandmother always had the stuff in her refrigerator, and I thought that it was (after White Castles) the best food ever invented.  At four years old, I had likely only been exposed to a few types of cheese:  cheddar, mozzarella, Velveeta(if that counts), and government.  I had a clear favorite.  When I requested it at the grocery store, my mom told me that it wasn’t something you could just buy, and I became convinced that it was a rare and very special thing, right up there with love and happiness.

Of course, as I grew up (or at least got older), I learned more about the government, and it is now my job to “deal” with the government on a daily basis.  Most of these dealings are via  paper filings only.  Speaking with government representatives over the phone is not a daily occurence, and it is rarer still to have in-person interactions.  (Unless you count my daily interactions with my husband, who serves in the U.S. Army.)  I have attended a handful of interviews and appointments at the USCIS office on the north side of Atlanta.  While most of these experiences have been palatable, none have left me as satisfied as I was as a four-year old after eating that government cheese.

Just as the government “cheese” wasn’t real cheese – but instead a highly processed “cheese product” — the immigration “service” isn’t renowned for its service.  Instead, it provides customers with lengthy processing times, delays, non-answers, and, often, disappointing decisions.

Because I had come to expect disappointment, I was pleasantly surprised during a recent series of interactions with the government.  (I had become so accustomed to eating the government cheese that I had all but forgotten the many other cheese options that the cows, goats, sheep, and apparently even cats of the world have made possible.)

My (pro bono) client was another Army wife.  She had entered this country as a fiancée years ago, married the guy who had filed the petition on her behalf, and later divorced.  They did not file a green card application.  She then married the U.S. citizen/soldier, and they worked to immediately file the requisite green card paperwork.  It was denied because the only way for someone who entered in K-1 (fiancée) status to obtain a green card is through marriage to (and, according to the USCIS examiner, petition by) the K-1 petitioner.  ICE initiated removal proceedings against her, and then I got involved. 

In large part because of my client’s status as an Army wife, the government treated her with fairness, respect, and (compared to other similar cases) a good deal of speed.  ICE agreed to place her under an order of supervision rather than in a detention facility, so she was able to go home and resume her normal life.  (She had to be home for a designated window of time each Sunday for a phone call from an automated ICE system, and she was not able to drive without a license because I forbade her from doing so, fearing an arrest.)  I have not asked her how much cheese she ate during her period of supervision.

We went to court twice.  The first was for a Master Calendar Hearing, and the judge agreed to fast-track the case, assigning us an individual hearing about a month later (whereas others were being assigned almost a year in advance).  At the individual hearing, the government attorney did not argue against my client’s adjustment of status, and the judge granted it.  We were lucky to have a new case on our side (Matter of Sesay) that more-or-less mirrored my client’s situation; it held that, so long as the foreign national who entered in K-1 status married the petitioner (and the marriage was bona fide – real cheese rather than “cheese food,” if you will), she was eligible to adjust status, regardless of whether the marriage was in tact at the time of adjustment.  She is now awaiting her green card, which should arrive in the next week or so. 

My description of the case may make it sound simple; it wasn’t.  But at all points during the process, our interactions with the government went smoothly and ended well.  And it all happened fast!  We did not have to wait for the government cheese to age, and it turns out that it is best eaten young.

A recent announcement by ICE to exercise discretion in removal cases has about half of the country in uproar.  But it makes sense to focus on the situations in which the foreign national is more deserving of removal (where serious crimes are involved, for instance) instead of spending valuable court and preparation time on Army wives.  There are downsides to the discretion:  it is not likely to occur quickly, and it does not offer much in the way of a resolution/peace of mind for those who are on the favorable side of the discretion.  But it marks a step toward functionality.  And I’ll take that kind of processed “cheese food” over the likely alternative (deport everyone/no cheese at all) any day.