Copland and Brenner

Table of Contents

1. "No-Match" Rule Finalized with Safe Harbor Provisions
2. Agriprocessors Update
3. DV-2010 reminder
4. In Brief: Recent Developments

1. "No-Match" Rule Finalized with Safe Harbor Provisions

   In a Federal Register notice published on October 28, the Department of Homeland Security (“DHS”) issued a Supplemental Final Rule reaffirming regulations providing a “safe harbor” from liability for employers that follow certain procedures after receiving notice casting doubt on any employee’s eligibility to work. The rule, which relates to employer obligations to verify the identity and employment eligibility of its hired workers by completing Form I-9 (Employment Eligibility Verification), purports to make final, “without substantive change,” an August 2007 final rule that was challenged in court by the AFL-CIO and others.

   The rule states that it became effective immediately. However, we note that on October 10, 2007 the U.S. District Court for the Northern District of California issued a preliminary injunction preventing implementation of the August 2007 rule in AFL-CIO v. Chertoff , 552 F.Supp.2d 999. A March 2008 supplemental notice of proposed rulemaking by DHS was intended to address the concerns of the court, which has not yet spoken following that proposed rule, or the more recent Supplemental Final Rule. This has led some to conclude that the preliminary injunction remains in effect. The new rule, however, states that “[t]he ongoing litigation involving the August 2007 Final Rule does not constrain DHS’s authority to amend and reissue the rule.” It remains to be seen whether the court in question, or others, will share the same view.

   The rule is intended to provide guidance on what constitutes “reasonable care” in response to a “no-match” letter from the Social Security Administration, or a “notice of suspect document” from DHS, to defend against an allegation of constructive knowledge that an employee is not authorized for employment. With the exception of one typographical correction, the Supplemental Final Rule is exactly the same as the August 15, 2007 final rule. As we discussed in the September 2007 edition of Immigration News , the rule amends the definition of “knowing” at 8 CFR 274a.1(l)(1) as it relates to “constructive knowledge,” by adding two “examples of information available to an employer indicating that an employee could be an alien not authorized to work in the United States,” and by explicitly stating an employer’s obligations after receiving a no-match letter or other information under 8 CFR Section 274a.1. If an employer fails to timely take “reasonable steps after receiving such information, and if the employee is in fact not authorized to work in the United States, the employer may be found to have had constructive knowledge of that fact.”

   Varying timeframes (from 30 – 93 days) apply to the required employer action depending upon the circumstances involved, and must be followed closely or an employer will be penalized. While civil penalties of up to $2,200 may attach to a first offense for each alien, criminal penalties (thus including potential imprisonment) may result from “pattern and practice” violations.

   In fulfilling their obligation to hire only authorized workers, employers must avoid becoming so overzealous that they violate anti-discrimination laws protecting workers. Aware of employer difficulty in establishing an appropriate balance, the Office of Special Counsel (“OSC”) - part of the Civil Rights Division within the Department of Justice (“DOJ”) - issued its own notice on October 28 “to clarify” when it “may find reasonable cause to believe that employers following the safe-harbor procedures have engaged in unlawful discrimination in violation of the antidiscrimination provisions of the Immigration and Nationality Act, Section 274B.”

   INA 274B prohibits employers from four types of discriminatory acts, which are generally the subject of OSC investigation and prosecution:

   - refusing to hire, or terminating, workers authorized to work in the U.S.A. because of national origin or citizenship status
   - requiring job applicants to hold certain citizenship or visa status (unless mandated by law or government contract)
   - discriminating by demanding more documents from workers than the law requires to prove identity or eligibility to work in this country, as set forth on Form I-9
   - retaliating against workers who assert their rights under these anti-discrimination laws

   Employers who discriminate or retaliate against workers may be required to hire or rehire the worker, pay back wages, or change internal policies to avoid further discrimination. Employers also may become liable for monetary fines or the workers’ legal fees.

   It may be difficult for employers in certain circumstances to balance competing mandates as they wend their way through the thicket of applicable statutes, regulations and interpretations. The OSC web site, at http://www.usdoj.gov/crt/osc/, offers a broad range of information regarding employer obligations and the anti-discrimination provisions it enforces. The site also includes information helpful to achieve employee understanding of their rights in relation to employment verification procedures.

2. Agriprocessors Update

   On May 12, 2008, U.S. Immigration and Customs Enforcement (“ICE”) executed a criminal search warrant at Agriprocessors, Inc., in Postville, Iowa, in which hundreds of workers were arrested and charged with a variety of offenses involving fraudulent documents and immigration violations. In court proceedings that were widely criticized, dozens of defendants were sentenced to prison after pleading guilty to using false identification documents to obtain employment and admitting they fraudulently used the identity of an actual person, with deportation to follow. Many questioned the heavy enforcement emphasis upon the employees, while apparently complicit management personnel went unpunished.

   Six months later, a lot has changed. In August, two supervisors pled guilty to related offenses: Juan Carlos Guerrero-Espinoza pled guilty on August 20 to conspiring to hire illegal aliens, and aiding and abetting the hiring of illegal aliens. On August 27, Martin De La Rosa-Loera pled guilty to aiding and abetting the harboring of illegal aliens. Both men were required as part of their plea agreements to cooperate with law enforcement agencies in their ongoing investigation. On September 9, two human resources employees were arrested – one was charged with aiding and abetting document fraud, aiding and abetting aggravated identity theft, and conspiring to harbor illegal aliens; the other, with aiding and abetting the harboring of illegal aliens. On October 29, the first employee pled guilty to offenses that could land her in prison for as long as 12 years.

   Then, on October 30, Sholom Rubashkin, 49, of Postville, Iowa – the former Chief Executive Officer of Agriprocessors - was charged with conspiring to harbor illegal aliens for profit, aiding and abetting document fraud, and aiding and abetting aggravated identity theft. According to a news release by U.S. Immigration and Customs Enforcement (“ICE”) that day, the complaint against Mr. Rubashkin alleges that the week before the May 12 raid, he “loaned $4,500 in $100 bills to employees who were known to have bad identification documents. Agriprocessors supervisors later allegedly distributed money to illegal alien employees so that they could purchase new, fake lawful permanent resident cards (‘green cards’) under different names.”

   The release states that the “complaint says an Agriprocessors foreman arranged the purchase of the documents, and that [Mr.] Rubashkin allegedly asked human resources employees to work Sunday afternoon, May 11, to complete new application paperwork for several people. According to the complaint, approximately 96 fake permanent resident cards and application paperwork were seized from the human resources offices the following day. The complaint alleges that approximately 90 of the fake permanent resident cards contained resident alien numbers that were assigned to other people.”

   Mr. Rubashkin “was released on the conditions that he wear a GPS ankle bracelet, limit his travel to the Northern District of Iowa, surrender his and his wife's passport, and provide a $1 million appearance bond with $500,000 to be secured by Nov. 5, 2008.” The charges against him are serious: “[1]f convicted, [Mr.] Rubashkin faces a possible maximum penalty on the conspiracy charge of 10 years in prison, a $250,000 fine, a $100 special assessment, and three years of supervised release. On the document fraud charge, he faces a possible maximum penalty of 10 years in prison, a $250,000 fine, a $100 special assessment, and three years of supervised release. On the aggravated identity theft charge, he faces a mandatory consecutive two years in prison, up to a $250,000 fine, a $100 special assessment, and one year of supervised release.” Of course, as the release notes, “[a]s with any criminal case, a charge is merely an accusation and a defendant is presumed innocent until and unless proven guilty.”

3. DV-2010 reminder

   We remind readers that entries for the Diversity Visa Lottery Program for 2010 (“DV-2010”) must be submitted electronically no later than noon (Eastern Standard Time) on Monday, December 1, 2008. Official Department of State instructions for DV-2010, including a link to the Electronic Diversity Visa Entry Form, may be found online at http://www.travel.state.gov/pdf/T1026V-DV-2010bulletin(3).pdf. Applicants are strongly encouraged by the DOS not to wait until the last week of the registration period to enter, as heavy demand may cause website delays, and no entries will be accepted after noon EST on December 1, 2008.

4. In Brief: Recent Developments

   Three-year stay authorized for Trade NAFTA Professionals: In a U.S. Citizenship and Immigration Services Update posted on its web site on October 14, the agency advised that the initial period of admission for Trade NAFTA (TN) professionals has been increased to three years from the previous one year allowed. The TN nonimmigrant classification is available to eligible Mexicans and Canadians with at least a bachelor’s degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement (NAFTA). Eligible professional activities are those that require at least a bachelor’s degree or appropriate credentials demonstrating status as a professional. The specific occupations that qualify for the TN nonimmigrant classification are listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and are reproduced in DHS regulations at 8 CFR 214.6(c).

   Links to the Update and Frequently Asked Questions may be found in the Press Room section of the agency’s web site, at www.uscis.gov.

   N-400, application for naturalization: Last month, we reported on a September 12 notice in the Federal Register intended to revise its direct mail program to include certain filings of Form N-400 effective October 14, 2008. The change would have meant that many naturalization applications would be filed at a designated lockbox facility instead of a USCIS Service Center for initial processing. On October 10, however, a Federal Register notice withdrew the earlier one, stating that the agency “is delaying the implementation of this revision to the Direct Mail Program while technical issues are resolved. Until further notice, applicants should submit their Form N-400 according to the instructions on the form. The current filing instructions can also be viewed on the USCIS Web site at http://www.uscis.gov. When the technical issues are resolved, USCIS will publish a new Notice in the Federal Register to advise the public on the revisions to the filing instructions.” (emphasis added)

   The October 10 rule notes that active members of the armed forces, and their spouses, should file their applications at the Nebraska Service Center regardless of geographic location or jurisdiction.