You don’t often see business leaders participate in a day meant to memorialize worker solidarity. Here in Southern California, however, the Department of Homeland Security’s immigration raids have caused the unimaginable to happen. A growing chorus of opposition to immigration raids is now joined by the The Los Angeles Area Chamber of Commerce and political leaders including California Assembly Speaker Fabian Nuñez and Los Angeles Mayor Antonio Villaraigosa.

Virginia Kice, spokeswoman for U.S. Immigration and Customs Enforcement (ICE), quoted in today’s Los Angeles times, says “It’s ICE’s sworn duty to enforce our nation’s immigration and customs law and the agency is going to aggressively pursue that mandate.” Speaker Nuñez is spot on, however, in attacking the government’s “overboard meat-ax approach.” What Ms. Kice apparently forgets is that another of ICE’s sworn duties is to exercise prosecutorial discretion when the public interest warrants.

There’s no public interest in using raids as a tactic to embarrass Congress into trying again to pass comprehensive immigration reform. Nor is the public well served by disrupting businesses, breaking up families with American kids, or hurting the nation at a time when the economy is still reeling from the effects of the mortgage meltdown and dried-up credit markets.

It’s time then for ICE to cool it on the raids.

It’s a Monday morning. I’m groggily sipping my usual espresso as I skim my emails before getting down to the business of immigration law. An email from a stranger leads me to a page of five finalists in a video contest on immigration in America. The contestants’ films lift my spirits. One talks of how we’re a great nation because we’re different. Another describes the human suffering of American children in the aftermath of a Feb. 2008 raid on a Van Nuys, California, printing supply company. A third shows, humorously but sadly, the perceptions that members of the public often have when visiting a USCIS district office, that of an agency afflicted with ineptitude and indifference, outdated technology, and chaotic file rooms, all covered with a false patina of concern. The fourth involves interviews of Americans living in a small border town who express sincere compassion for the plight of desperate migrants. The last, a student film, is an interview with Lady Liberty. The films are short; but the impression they leave you with is lasting. Take a look. You’ll be touched, and glad you did.

USCIS Director Emilio Gonzalez took umbrage last week with a March 19 New York Times editorial (“Citizenship, Thwarted”) published the day before:

My posting today demonstrates to the more than 700,000 newly naturalized citizens that this country embraces free and open debate. It is a shame, however that a newspaper like the New York Times – which boasts with each paper that it contains all the news that’s fit to print – only values its version of a story and leaves no room for that debate or for the facts.

It’s a case of selective-perception umbrage. Despite the rosy picture of speedy naturalizations that Mr. Gonzalez tries to paint (“[an unspecified] many of the applicants who filed for citizenship after July 2007 have already been naturalized”), the USCIS processing page candidly reveals that “naturalization applications filed after June 1, 2007 may take approximately 16-18 months to process.” The point of the Times’ editorial was that a significant number of naturalization applicants will be ineligible to vote in November 4, 2008 elections because USCIS cannot process their cases in time, despite a 66% filing fee increase that was supposed to improve agency processing time and the quality of service.

Mr. Gonzalez, whose resignation is effective April 18, offers an outraged reply that mischaracterizes the Times’ words. The paper said:

Maybe it’s a stretch to call this intentional disenfranchisement after hundreds of thousands of Latinos demonstrated in the spring of 2006, chanting: “Today we march. Tomorrow we vote.” Still, the absence of so many would-be Latino voters could benefit the Republicans, who have worked so hard to stoke a rancid anti-immigrant mood in this country.

Commissioner Gonzalez omits the tentative phrasing the editorial writer used (“[m]aybe it’s a stretch to call this intentional disenfranchisement”), and fails to acknowledge the editorial’s point, namely, that the agency’s inability to naturalize a large pool of Hispanic voters – who typically vote blue – could disfavor Democrats and help Republicans.

The Commissioner’s reply also mischaracterizes the Times’ editorial when he addresses the agency’s acknowledged delay in opening applicants’ mail and issuing receipts, describing the Times’ comments as “an outright fabrication, hastily conceived by an imaginative writer.” The writer was not addressing the present circumstances (because by now the mail has been opened and the processing begun), rather the editorialist was referring to how history will report on Mr. Gonzalez’s tenure:

Mr. Gonzalez will soon have time to reflect on a dismal monument to his tenure: the dreams of thousands of rule-following, line-waiting, would-be Americans, signed, sealed in envelopes with large checks and money orders, delivered by truckloads, waiting in shrink-wrapped pallets, unopened.

Perhaps the reference to “shrink-wrapped pallets” is hyperbole, but the truth is that there have been significant delays in the agency’s opening of envelopes and issuance of receipts, as the USCIS continues to acknowledge with a “Processing Delay” FAQ link on the left side of its home page.

The more fundamental truth is that despite Mr. Gonzalez’s laudable effort to pump up the flagging spirits of USCIS personnel in his March 20 posting, history will judge this political appointee as largely ineffectual.

Mr. Gonzalez’s talk of technology enhancements (“[m]odernization efforts to build a fully-electronic immigration platform continue to move forward.”) seem like vaporware given the the ageny’s oft-repeated grand pronouncements of modernization. Truth is we still can’t file supporting documents online when petitions and applications are submitted through the E-Filing system.

His talk of promised actions (“more than half of all the citizenship applications received in June and July will be completed by September 30”) must await the “walk-the-walk” proof from an agency not known for accurate predictions on processing time. Increasingly, courts are ordering the USCIS to grant long-delayed naturalization applications, and requiring the government to pay attorney fees. See, “Courts Award Attorneys’ Fees in Naturalization Delay Cases,” published by the Litigation Action Center of the American Immigration Law Foundation. Mr. Gonzalez, who will pay these attorneys’ fees? Will these costs too be heaped onto the backs of U.S. citizens and employers who sponsor legal immigrants?

Perhaps, Mr. Gonzalez, as you enter retirement and ponder your time at the helm of USCIS, you might gradually understand the feelings of applicants for naturalization who cannot vote in the coming election but still must pay the exorbitant filing fees that (as the Times noted) keep “the rickety [immigration] system going.”

Judging from the response, this blogger’s commentary today in Forbes.com annoyed more than a few opponents of legal immigration. One writer thought the piece was funny, suggesting that my commentary earned me a spot on Jay Leno’s Tonight Show. Others suggested a pecuniary interest in that more work visas mean more work for immigration lawyers. But one writer, a foreign worker who gave up on the U.S. immigration system, tells of how he and other foreign transplants prospering at newfound jobs in London could no longer tolerate the unfairness and dysfunction of America’s broken system of legal immigration. In essence, that commenter proved the point of the article: Congress and the Administration should be ashamed that — in all their claimed concern for the failing economy — they have overlooked a readily available, jobs-based solution to our nation’s economic woes. Now more than ever, surgical corrections to the employment-based, legal immigration system are urgently needed. Scrap the ill-conceived visa quotas and allow our country to benefit from the job-creating talents of the foreign workers who we educate in America or who want to come and contribute to our country.

Angelo A. Paparelli and Ted J. Chiappari published in the New York Law Journal February 25, 2008

When the subject of immigration policy has been raised in the stump speeches and debates this election season, the candidates (particularly the anti-immigration candidates who, for want of voter support, are no longer in the race) have focused almost exclusively on illegal immigration. Current and erstwhile candidates have waxed rhapsodic on the value of border fences and strict enforcement. Very little has been said, however, about legal immigration. We sometimes hear the short, perfunctory compliment paid to those who “have played by the rules” and “patiently waited in line” outside the United States, and perhaps also a remark, uttered in passing but without much passion, on the need to increase visas for better educated, highly skilled workers.

One candidate with surprising internet-fueled support, the quixotic Ron Paul (who largely opposes immigration), has often asked a question about America’s muscular foreign policy that could well be applied to the attitudes of many law-abiding foreign nationals. Dr. Paul asks and then answers this question: “Why is it that they don’t like us? It’s because of how we treat them.” He continues: “How would you feel if they did the same to us?” His question, of course, is not new; rather, it is a variation on the venerable theme of the Golden Rule, the injunction to do unto others as we would have them do unto us.

To what extent, then, do our nation’s immigration policies apply the Golden Rule? Regrettably, sightings of the Golden Rule are as rare as UFO sightings by presidential candidates. America’s immigration policies are embodied in the Immigration and Nationality Act (INA) – a relic of the McCarthy era ­­– and in the actions of legislators, agency officials and judges from the Fifties to today. Taken as a whole, our immigration laws and regulations reflect policies of official suspicion of and arrogance toward virtually all foreigners.

To be sure, few among us would decry strict enforcement against brazen immigration violators, especially terrorists and criminals, or chastise the government for adopting intelligent and effective measures to protect the homeland. For example, inkless 10-print fingerprinting of foreign citizens at U.S. ports of entry is a reasonable burden in light of the potential benefit of snaring terrorists or criminals, and Americans should be ready to accept similar requirements, as has been proposed for entry to European Union nations.

[1] Still, the question arises whether it serves our nation’s interest and reflects our bedrock values when, as a matter of law and procedure, we systematically apply the tools of indifference and suspicion to all foreign citizens.

To read entire column go to: this link (1) or this link (2).

Attribution and permission statement from NYLJ appears on the links above.

To read related article “Fortress America,” Click Here

Commentary: The Lowly Form I-9 Gets a Low-Level Makeover By Ted J. Chiappari and Angelo A. Paparelli – New York Law Journal

As of Dec. 26, 2007, all employers must use the updated Form I-9, which the U.S. Citizenship and Immigration Services (USCIS) published in November. In use since 1986, the I-9, Employment Eligibility Verification, is the form that all employers are required to complete at the time of hiring to verify the employment eligibility of new hires.

The USCIS has also issued a revised Handbook for Employers (Form M-274), which had been outdated and out of print for over a decade. The new I-9 can be downloaded from http://www.uscis.gov/files/form/I-9.pdf, and the new handbook from http://www.uscis.gov/files/nativedocuments/m-274.pdf.

The changes in the updated version seem minimal, some might say insignificant, and appear really more makeup than makeover. But they are long overdue, having been legislated by Congress in 1996. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), §412(a), P.L 104-208, 110 Stat. 3009-546, 3009-666-3009-667, amending Immigration and Nationality Act §274A(b)(1), 8 U.S.C. §1324a(b)(1), shortened the list of acceptable documents proving both identity and employment eligibility in an attempt to simplify the I-9 process and improve employer compliance. The Immigration and Naturalization Service (INS), the predecessor of USCIS and its sister agencies within the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), implemented the statute by regulation in 1997, but never updated the actual form.

The publication of the new form provides an opportunity to explore how the labor-intensive Form I-9 fits in with recent DHS initiatives and the overall immigration enforcement scheme in the United States.

To read entire article go to: link 1 or link 2 See attribution and permission to print this article on article links.

You Can Find Immigration Lawyers in the Strangest Places: Angelo Paparelli Weighs in on Subprime Mortgage Crisis in Quote for The New York Observer on December 11, 2007

Addressing the economic subprime mortgage crisis by way of “picket wielding demonstrators” was all but ignored by spectators walking by one block north of the New York Stock Exchange on December 11, 2007.“Some spectators, like lawyer Angelo A. Paparelli, agreed that the government needs to do more to stem the two million mortgage foreclosures that are expected in the next two years.”

“Obviously, there has to be a political solution [because] someone’s ox is going to be gored; the question is who suffers and who wins out,” he [Paparelli] said on the sidelines of the protest. “Everyone is culpable here. I feel for these people, but if they had no realistic hope of servicing the debt, they should pay. If they were duped, then the duper should pay. [President Bush’s plan] is arbitrary and doesn’t go far enough though.”

Lysandra Ohrstrom, “Wall Street on Jesse Jackson Foreclosure March: ‘These People Are Not Victims,’ The New York Observer, December 11, 2007.Read entire article at: Click this link

Faced with a dwindling supply of available workers, you may be among the many employers looking to fill your ranks with foreign nationals. Hiring immigrants, after all, has long been a valued technique for getting the job done in America.

Today, though, employers need to tread more carefully over what has become rougher legal terrain. As the nation’s headlines attest, employers can be hit with stiff penalties when errors are made hiring workers from other nations who are in the United States temporarily or permanently.

Federal regulations are tightening up in ways that target employers of undocumented workers. And that’s only the start: State governments around the country are creating a confusing patchwork of laws related to the hiring of foreign nationals, following the failure of Congress to pass comprehensive immigration reform last summer. “The states are having to pick up where the federal government did not come through,” notes David Kotick, managing partner of Apsan Law Group, an immigration law firm in New York.

Even municipalities are getting into the act. “Many local communities are fighting illegal immigration by targeting businesses,” cautions Kotick. “Employers who hire undocumented aliens face steep fines and the loss of their business licenses. Some laws even mandate jail time for repeat offenders.”

Verify eligibility
Whatever your location, you are subject to federal regulations which require you to verify the employment eligibility of anyone you hire. “Every individual, once hired, must be asked for documents that prove their identity and their work authorization,” cautions Carlina Tapia-Ruano, partner at Chicago-based Tapia-Ruano & Gunn, an immigration law firm (www.trgpc.com ). The employer must have each hired individual fill out an I-9 form, titled “Employment Eligibility Verification,” issued by the U.S. Citizen and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). (To avoid any appearance of discrimination, the law requires that you have individuals complete this form only after being hired, not during the recruitment process.)

You can download a copy of an I-9 form from www.uscis.gov. Click on “Immigration Forms” and then “Employment Eligibility Verification” or I-9, toward the bottom of the list.

On part 1 of the I-9 form, the employee enters basic information such as name, address, social security number and date of birth. Just as important is the section on the employment status of the individual. There are only three choices here: The individual is either 1) a U.S. Citizen; 2) a legal permanent resident, or 3) an alien authorized to work until a given date. The employee must sign and date the form.

In Part 2 of the form, you must certify that you have made sure the documents provided by the employee

establish the individual’s identity and employment authorization. What documents are acceptable? There is an extensive list on the back of the I-9 form. Any one document from a list of 10 are acceptable as proof of both identity and employment eligibility. (A passport and a permanent resident card are two examples.) Additionally, there are nearly two dozen additional documents that have been certified as proof of one of the two criteria.

Part 3 provides space for updating the form’s information after a worker’s previous work authorization has expired.

“The law requires that the signatures and the information be completed within three days of the employee’s hire date,” notes Tapia-Ruano. “Many attorneys recommend that employers attach photocopies of the reviewed documents to each I-9, to help protect the business in the event of an audit.”

Avoid Errors
Gathering documents is one thing. Making sure they are authentic and that all of the blanks are filled in correctly is another. Failure to do so can be costly. Penalties for errors can range from $1,000 to $10,000 per violation. “The penalties can accumulate very quickly even with a single I-9 form if there are numerous violations,” cautions Tapia-Ruano. “Some employers have been hit with hundreds and thousands of dollars in penalties and fines.”

Even employers who make innocent mistakes can be fined, cautions Tapia-Ruano. “If a receptionist or whoever is assisting employees in completing the I-9 forms makes mistakes, then even if the workers are U.S. born citizens the employer is subject to fines. The fact that this can happen repeatedly makes employers very uncomfortable.”

Employers should make sure that everyone who helps employees fill out I-9’s is trained to avoid as many errors as possible, suggests Tapia-Ruano. “And I would encourage internal audit of I-9’s on a periodic basis. Don’t wait for an audit by the Department of Homeland Security.”

While the I-9 form looks simple, attorneys caution employers from making these common errors:
Illegal bias: Avoid charges of discrimination by requiring every employee (not just the ones whom you believe are from another country because of their appearance or their speech) to fill out an I-9 form.

Entry errors: “Any mistakes can or will result in fines,” cautions Tapia-Ruano. One of the more common errors is incorrect indication of the employee’s immigration status. An employee with a work visa, for example, may have erroneously filled in “permanent resident.” Such a mistake is significant even if done innocently. “It is the employer’s duty to make sure the entries are accurate.”

Over-restrictive documentation: Avoid requiring documentation that is more restrictive than what the law mandates. An employer might be tempted to do this to simplify record keeping, but it is illegal and can lead to fines as well as charges of discrimination. “The I-9 provides a list of documents which are acceptable as proof,” notes Tapia-Ruano. “You must accept the employee’s decision as to which of the listed documents to provide.”

Failure to assess authenticity: The employer must not accept documents that a reasonable person would suspect were fraudulent either because they look doctored or look like duplicates.

Procrastination: Another mistake is to put off the task of examining the employee’s documents and getting the I-9 in order. “It’s not uncommon for employers to wait more than three days,” notes Tapia-Ruano. “Again, that can result in fines.”

Allowing expiration dates to slip by: Many employees have permission to work for only a limited period of time. “You need a system to continue to verify the employment status of an individual throughout the period of employment,” cautions Tapia-Ruano. Prior to the expiration date, ask the employee to present new verification documents.

It’s important to retain these I-9 forms in a safe place. “At any time, the Department of Homeland Security or the U.S. Department of Labor may come around and perform what they call an ‘employment audit’ of I-9s,” adds Tapia-Ruano.

Safe Harbor Rules
The U.S. Social Security Administration (SSA) has long been in the practice of sending “no match” letters to employers when workers’ names and social security numbers on W-2 Forms do not match the SSA records. In the past, employers had never been sure what to do after receiving these letters. Should a worker who cannot reconcile the discrepancy be fired?

“In many cases employers have kept the employees on board, fearing that a termination decision based on a no-match letter might lead to charges of discrimination,” notes Angelo A. Paparelli, managing partner of Paparelli & Partners, an immigration law firm with offices in New York City and Irvine, Calif. (www.entertheusa.com). “After all, there can be legitimate reasons why a no-match occurs. A female employee might have gotten married, for example, and changed her name to her husband’s without notifying the social security administration. Or the social security administration could have misspelled the name.”
Indeed, the web site of the U.S. Immigration and Customs Enforcement division of the Department of Homeland Security states that “an employer who takes action against an employee based on nothing more substantial than a mismatch letter may, in fact, violate the law.”

Times, though, are changing. Today’s employers face more severe fines for hiring illegal immigrants and there is a general national mood shift against undocumented foreign nationals. Many observers, therefore, are concerned that employers will opt to risk discrimination lawsuits over the federal government’s civil and criminal penalties for employment of undocumented workers. “The fear is that many people will be terminated based on foreign appearance and name,” cautions Paparelli.

As partial mitigation for this problem, in August of 2007 the Department of Homeland Security issued new regulations intended to clarify matters while providing a “safe harbor” for employers who hire foreign nationals. The regulations define what steps employers must take within what time frames to avoid legal liability for hiring undocumented workers.

You should be aware of this safe harbor as well of any additional regulations that are likely to flow from the federal pipeline. See the sidebar, “Safe Harbor for Employers.”

Maybe the safe harbor regulations are intended to reduce ambiguity, but employers still face the costly task of checking and double checking documents. And the safe harbor regulations carry their own heightened risk of financial penalty. “The procedures defined in the rules are not really voluntary,” cautions Paparelli. “The employer who fails to carry out the defined steps risks being charged with ‘constructive knowledge’ of the employment of workers who lack the right to work. This would put the employer in violation of immigration laws.”

Stay Informed
Many feel that recent changes in federal regulations represent an attempt to shift the border control effort from the government to the private sector. “Employers feel an unreasonable burden is being placed on their shoulders to control undocumented employees,” says attorney Tapia-Ruano.

If more is expected of the employer than ever before, though, it only highlights the need to maintain vigilance in hiring procedures. As the face of America’s workforce changes, employers can be sure there will be additional changes in federal, state and local regulations.
[End of story. Sidebars follow.]

Sidebar 1: Safe Harbor for Employers
For decades the U.S. Social Security Administration (SSA) has sent “no match” letters to employers when workers’ names and social security numbers did not correspond to the agency’s records.

Employers have been unsure what to do after receiving the letters. There was no firm guidance from the government and in many cases employees remained on the payroll in a kind of limbo.

This situation has changed. In August of 2007 the U.S. Immigrations and Customs Enforcement division of the Department of Homeland Security issued new regulations that defined the steps to be taken by employers receiving no match letters. At the same time, those employers who follow the procedures are granted safe harbor from prosecution.

To access these procedures, point your browser to the U.S. Immigration and Custom Enforcement web site, www.ice.gov, then click on “Safe Harbor for Employers Information Center.” A series of documents describe what must be done after the receipt of a letter
.
Here is a brief synopsis:
1) Within 30 days, check your records to ensure that the mismatch was not the result of a clerical error.
2) If this does not resolve the problem, ask the employee to confirm the accuracy of the employer’s records.
3) Ask the employee to resolve the issue with SSA within 90 days from the date the employer received the no-match letter.
4) If the employee was able to successfully resolve the mismatch, ensure that the instructions in the SSA letter have been followed.
5) If the issue is still unresolved, initiate another verification round as if the employee were newly hired.

Sidebar 2: Understanding Employment Visas

Documents which certify that “foreign nationals” — people who are natives of other countries—are eligible to work in the United States are called “employment visas.” Not all employment visas are alike. In fact there are a host of different kinds. (To peruse the full array of visas with explanations, navigate to the web page maintained by the U.S. Department of State at www.unitedstatesvisas.gov, and also http://travel.state.gov/visa.)

Many employers hire unskilled workers with H-2B visas, valid for temporary employment for up to a year. “There is a tremendous need for people to fill such positions in this country,” notes David Kotick, managing partner of Apsan Law Group, an immigration law firm in New York.

Arranging for H-2B visas can take up to four months to complete. The process begins when the employer obtains a labor verification from the U.S. Department of Labor. Then the employer files a petition with the Department of Homeland Security. When that petition is approved the worker can apply for a visa and a passport from the U.S. consulate in his or her own country.

The U.S. limits such visas to 66,000 annually. “It’s nowhere near enough,” says Kotick. “They run out very quickly and there is a severe labor shortage for these workers that affects business profits and the economy as a whole.”

“What’s really needed is a program that provides for a year-round legal status for guest workers,” notes Kotick. “That was part of the Congressional immigration reform package that fell through.”

Sidebar 3: Getting Help
Employers requiring legal assistance on immigration law may turn to resources such as these:
** The Academy of Business Immigration Lawyers (www.abil.com).
** The American Immigration Lawyers Association (www.aila.org).
** FindLaw. (Categorizes attorneys by legal issue, including immigration law) (http://lawyers.findlaw.com).
[End of sidebars.]

Copyright© 2007 by Phillip M. Perry – used with permission.
www.editorialcalendar.net

See also the story posted on the site of Area Development magazine: Click this link