USCIS Announces Revised Form I-9

Update: For an analysis of the new Form I-9 and the likely DHS enforcement strategies, see “The Lowly Form I-9 Gets a Low-Level Makeover,” by Ted J. Chiappari and Angelo A. Paparelli, published on December 24, 2007 in the New York Law Journal, and available here: http://www.entertheusa.com/publications/0712-njlj.pdf

On November 7, 2007, USCIS announced that a revised Employment Eligibility Verification Form (Form I-9) is now available for use, as well as the (Form M-274) which provides employers with instructions for completing the Form I-9, and guidance in how to avoid charges of unlawful discrimination on the basis of national origin or citizenship. Since the U.S. Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), U.S. employers have had to verify that prospective employees have legal permission (authorization) to work in the United States. U.S. employers perform the verification process by proper and timely completion and retention of Form I-9 (Employment Eligibility Verification Form) for each worker hired after November 6, 1986.

The content of Form I-9 has changed little since being introduced as part of the employment verification process, but the new version of Form I-9 does contain substantive revisions. The primary distinction between the old and new version of the form is the removal of certain documents that can now be presented by newly hired employees to establish both identity and employment eligibility (‘List A” documents). The documents which have been removed from List A include the Certificate of Citizenship (Form N-560 or N-561), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Card (I-151), Unexpired Refugee Travel Document (Form I-571) and Unexpired Reentry Permit (Form I-327).

The removal of these documents comports with the mandate contained in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) requiring a reduction in the number of documents employers may accept from newly hired employees during the employment verification process. According to the November 7, 2007 announcement issued by the USCIS Office of Communications, the documents removed were those deemed susceptible to counterfeiting, tampering and fraud. USCIS has indicated that the revised version of Form I-9 (dated 06/05/07) is available on their website, and is encouraging employers to start using the form immediately. The agency has further advised that the form will become “effective” once notice of the revised form is published in the Federal Register, and that employers failing to use the revised form after the effective date will be subject to fines and penalties.

The USCIS Announcement and Fact Sheet on the revised form may be viewed at: http://www.uscis.gov/files/pressrelease/FormI9Update110707.pdf http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf

The revised Form I-9 and Handbook for Employers may be accessed by clicking on the following links:http://www.uscis.gov/files/form/I-9.pdf http://www.uscis.gov/files/nativedocuments/m-274.pdf

For further information concerning the employment verification process, please feel free to contact our office at (949) 955-5555.

Angelo Paparelli Appointed to Write New York Law Journal Immigration Column – First Article Published October 22, 2007

Angelo Paparelli has accepted the post as an immigration column writer for the New York Law Journal with his first published article “Despite Court Setback on No Match Rule, Homeland Security’s Outsourcing of Immigration Enforcement Gains Momentum.”  Noted Immigration lawyer and author Angelo A. Paparelli replaces Stephen Yale-Loehr as an immigration law columnist for the New York Law Journal. Yale-Loehr, a prominent immigration lawyer and adjunct professor at Cornell University Law School who has co-authored the column for the past 10 years, nominated Paparelli, and the NYLJ confirmed the selection. On October 22, 2007, the NYLJ published Paparelli’s first article, “Despite Court Setback on No-Match Rule, Homeland Security’s Outsourcing of Immigration Enforcement Gains Momentum.” He shares authorship with current NYLJ immigration columnist and well-respected immigration attorney Ted Chiappari, a partner at Satterlee Stephens Burke & Burke LLP in New York City. Yale-Loehr will continue as co-author of the 20-volume treatise Immigration Law and Procedure, published by LexisNexis Matthew Bender, and with his teaching responsibilities and immigration practice. The column will be written in even months by both Paparelli and Chiappari and in odd months by a well-respected immigration attorney in New York. With a column word count of 1750-2000 words, this should give Paparelli & Partners LLP, through Angelo’s literary voice, an opportunity to help businesses keep apprised of current business immigration issues that affect their hiring of well-qualified international employees. Please stay tuned for future article links for the New York Law Journal Immigration Column co-authored by Angelo Paparelli.

To view written article: http://www.entertheusa.com/publications/0711inthenews_nylj.pdf To view PDF of NYLJ published article: http://www.entertheusa.com/publications/0711inthenews_nylj_article.pdf

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

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

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

 

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

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

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

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

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

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

Hold off on Uncorking the Champagne

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

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

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

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

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

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

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

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

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

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

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

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

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

Paparelli was quoted on the ruling:

The rule would be prohibited from going into effect as long as the legal proceedings continue—unless a court of appeals intervenes.

“This litigation could go on for years,” says Angelo Paparelli, a lawyer with Paparelli & Partners in Irvine, California, and president of the Academy of Business Immigration Lawyers.

The AFL-CIO may be angling for such an outcome. It’s making its case to a court that has demonstrated sympathy to employees and unions.

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

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

Over the past several months, many U.S. travelers have encountered substantial delays in obtaining passports as a result of new rules imposing passport requirements for North American travel, for national security reasons. Some have missed important trips as a result. In response, the State Department has relaxed the rules temporarily. Assistant Secretary of State Maura Harty, who oversees passports for U.S. citizens, recently acknowledged the problem: “Over the past several months, many travelers who applied for a passport did not receive their document in time for their planned travel. I deeply regret that. I accept complete responsibility for this.”

A Department statement noted that “[w]e are aware that some travelers have not been able to obtain passports because of longer processing times caused by record-setting demand. Accordingly, we’re allowing flexibility because we are hearing about more cases of Americans missing flights. As a service organization dedicated to helping Americans, we cannot let this happen.”

U.S. citizens traveling to Canada, Mexico, the Caribbean and Bermuda who have applied for but not yet received passports can temporarily enter and depart from the U.S. by air with a government-issued photo identification and Department of State official proof of application for a passport through Sept. 30, 2007. U.S. citizens who take advantage of this accommodation will need to present the official proof of passport application to air carriers and to Customs and Border Protection (CBP) officers at air ports of entry. Such individuals may be subject to secondary inspection.

Travelers who have not applied for passports should plan 10 to 12 weeks for standard passport processing and two to three weeks for expedited processing, the Department said. Details are available at http://travel.state.gov/travel/cbpmc/cbpmc_3254.html

Angelo Paparelli was interviewed recently by Los Angeles Times reporter Nicole Gaouette about a federal judge’s decision striking down a Pennsylvania city ordinance that sought to punish landlords who rent to undocumented immigrants and employers who hire them, and ruling that immigration law is the province of the federal government alone. Paparelli was quoted on the ruling:

Irvine immigration lawyer Angelo Paparelli — president of the Academy of Business Immigration Lawyers, which says it advocates “enlightened business immigration reform” — said the ruling could cool local illegal immigration campaigns.“I think the cities and states will be given a handy justification for not taking action,” he said, “and I hope the pressure will be redirected back at Congress, where it belongs.”

David G. Savage and Nicole Gaouette, Times Staff Writers, “Hazleton immigration law is rejected – A city cannot take such a national issue into its own hands, a judge rules in Pennsylvania,” Los Angeles Times, July 27, 2007. Full article available at: http://www.latimes.com/news/nationworld/washingtondc/la-na-hazleton27jul27,1,4961607.story

Apocalypse Never: Victorious Work Visa Strategies

Presented by: Angelo Paparelli, Managing Partner of Paparelli & Partners LLP

 

On Tuesday, September 18, 2007, at 10 a.m. Pacific Time and 1 p.m. Eastern Time, Angelo Paparelli will offer a telephone briefing brought to you by www.entertheusa.com and www.briefingsource.com.

Background: For many U.S. employers, America’s immigration laws present opportunities and risks. Your company can be immigration champs (if you know the ropes) or immigration chumps (if you lack information to avoid the sucker punches). Our nation’s immigration laws can play a vital role in allowing American employers to recruit and hire the best and brightest professional workers with critically needed skill-sets from anywhere on the planet. Wise use of available work visas and employment-based green-card strategies can help employers leap ahead of domestic and foreign competitors.

What you will learn: This presentation, by Angelo Paparelli, a nationally renowned immigration lawyer and author, will discuss: 

  • How to structure your foreign-worker hiring strategy to gain maximum benefits with minimum risk.
  • How to select the best work visa category among the alphabet-soup of visa options for your company’s and candidate’s unique situation.
  • How to continue recruiting even when immigration quotas are full.
  • How to keep the “keepers” by transitioning nonimmigrant workers to permanent (“Green Card”) status.
  • How to legally terminate foreign workers for-cause or as part of a reduction in force.
  • How to defend your company against a Labor Department or DHS investigation.

Who should attend: Hiring decision makers, human resource upper management

About your speaker: Angelo Paparelli, a lawyer licensed in California, New York and Michigan, is President of the Academy of Business Immigration Lawyers (www.abil.com). He also serves as Managing Partner of Paparelli & Partners LLP (www.entertheusa.com), a leading immigration specialty firm in New York, NY and Irvine, CA. Selected as the world’s leading corporate immigration lawyer by The International Who’s Who of Business Lawyers (2005 & 2006), and named a first-tier business immigration lawyer by Chambers Global. Mr. Paparelli writes an immigration law blog (www.nationofimmigrators.com), and serves as an expert witness on immigration issues in a wide array of courtroom disputes.

How it works: Each toll-free dial in is $279. Put the teleconference on your speakerphone and have as many attendees as you like for this price. Briefingsource.com will forward you by email all call-in information and PowerPoint presentations about one week before the call. The materials may be duplicated for anyone attending.

 Where: In your office or conference room.

Registration: $279 per line. To register, please register at www.shop.briefingsource.com, or call 1-703-477-5941. For more information: Please email info@briefingsource.com

Fighting Crime: A Workshop for Immigration Lawyers http://www.ilw.com/workshops/march2007crimes.shtmImmigration lawyers today, no matter the focus of their practice, increasingly are coming face-to-face with the dreaded word “CRIME.” A valued client has been charged with a crime, or worse yet, a shamefaced client belatedly “remembers” that a criminal conviction rests in the closet. More and more often, federal authorities dismiss the option of a civil violation in favor of criminal prosecution. Immigration attorneys dread the word “crime” – not just because it may waylay even the best nonimmigrant or green-card strategy and mean escalated consequences for their clients. They dread it because it signifies work outside the immigration comfort zone, or perhaps beyond the lawyer’s level of competence. So they face a painful dilemma: Refer the client and a lucrative matter to a more-experienced practitioner or jump into the deep water without a life vest. It doesn’t matter if their practice is white- or blue-collar, family- or employment-based, immigration-court focused or service-center centric, most lawyers simply dread the “crime” word. They may have attended past seminars on the immigration consequences of criminal convictions, but then Congress, the agencies and the courts keep changing the rules and interpretations. What worked before, now may be foreclosed or ineffective.
Order the DVD today.

Solving Complex Immigration Challenges While Super-Charging Your Career and Your Law Firm http://www.ilw.com/workshops/march2007challenges.shtm

Immigration-law representation and practice management have never been more difficult. The ever-changing law is mind-bogglingly complex, agency regulations are either indecipherable or nonexistent, and the bureaucratic response is typically confused, nonsensical or unforgiving.

Media bloviators befuddle, inflame and frighten the public about America’s “Broken Borders”. ICE conducts unannounced raids of employers and sweeps of the hapless alien parents of U.S. citizen children. USCIS launches a new website that spits out more error messages than answers. CBP snares both overstays and legitimate travelers alike who apply for admission at ports of entry. The DOL’s buggy PERM program perplexes long-time and new practitioners. DOS and DHS are hamstrung by delays in FBI security clearances. The AAO rubber-stamps USCIS denials while pretending to be impartial. The State Department reports monthly quota backlogs that move at a chelonian pace. Future H-1B hopefuls are stuck like insects in amber while awaiting April 1 and October 1. A newly reconstituted, Democrat-controlled Congress is set to attempt a grand resolution on comprehensive immigration reform legislation with Pres. Bush.

Meantime, today’s clients are more demanding and panic-stricken than ever because the stakes for them have never been greater.

  1. With all that is riding on the work of today’s immigration lawyers, are you and your law firm ready for the minefields and IEDs that lie ahead?
  2. Are you drowning in tedium, paperwork, red tape and online inanity, finding it hard to make an honest buck, and feeling unloved and undervalued?
  3. Is your immigration practice where it should or could be?
  4. Is it time to stretch yourself beyond your comfort zone and ramp up your immigration career and your law firm to a higher level?

If you answered “yes” to even one of these questions, then you should request the DVD of this one-day groundbreaking seminar presented by world-class immigration lawyer, Angelo Paparelli, and other handpicked crème de la crème experts.
Order this DVD today.