Copland and Brenner

Table of Contents

1. DHS Delays New Form I-9, Employment Eligibility Verification
2. E-Verify Delay for Federal Contractors
3. 2009 Poverty Guidelines Updated for Form I-864
4. Senator Gillibrand’s Evolution

1. DHS Delays New Form I-9, Employment Eligibility Verification

   By notice published in the Federal Register on February 3, 2009, the Department of Homeland Security (“DHS”) delayed the effective date of an interim rule regarding Form I-9, Employment Eligibility Verification. As we reported last month, the rule was initially scheduled to go into effect on February 2, 2009. However, the rule issued this month delays the effective date for 60 days, until April 3, and the deadline to submit comments has been extended until March 4. The notice delaying the effective date, which includes instructions for those wishing to submit comments, may be found at the Federal Register online at http://www.access.gpo.gov/su_docs/fedreg/a090203c.html. Those wishing to review the interim rule online may do so at http://edocket.access.gpo.gov/2008/E8-29874.htm.

   Form I-9 must be completed for all new hires, and must be updated in certain circumstances, to verify workers’ initial or ongoing employment eligibility. The interim rule would amend the documents that employers may accept to verify workers’ employment eligibility by, among other things, prohibiting acceptance of expired documents.

   We note that the delay may further confuse U.S. employers already struggling to keep up with agency changes to Form I-9, acceptable documents and associated procedures. Since the rule was initially scheduled to go into effect on February 2, U.S. Citizenship and Immigration Services (“USCIS”) posted a new Form I-9 to its web site indicating that the new form should be used as of that date. The new form bears the legend (Form I-9 (Rev. 02/02/09) N” in the lower right hand corner. Now, with the delayed effective date, the agency’s web site indicates that the 02/02/09 version of the form is for use only on and after April 3, 2009.
   
   There are sure to be some employers who have used, or will use, the new I-9 before it (and the updated documentary requirements appearing on page five of the form) ultimately becomes effective. It is entirely unclear how the agency will address this issue when it inevitably arises in connection with inspection or enforcement activities by the USCIS counterpart, U.S. Immigration and Customs Enforcement.

2. E-Verify Delay for Federal Contractors

   In December 2008, we reported on a rule published in the Federal Register on November 14, under which federal contractors and subcontractors would be required to use the E-Verify system to verify employee eligibility to work legally in the U.S.A. The rule, a joint effort by the Department of Defense, the General Services Administration (“GSA”) and the National Aeronautics and Space Administration (“NASA”), affects federal acquisition regulations and was scheduled to go into effect on January 15, 2009. This meant that federal contracts awarded and solicitations issued after Jan. 15 would include a clause committing government contractors to use E-Verify.

   However, the rule became the subject of a lawsuit before U.S. District Court for the District of Maryland in Chamber of Commerce of the United States of America, et al. v. Chertoff, et al . The case challenged the government’s use of an Executive Order and federal procurement law to make E-Verify mandatory for certain contractors and subcontractors. It also challenged the rule’s requirement that federal contractors use E-Verify to confirm the employment eligibility of all current employees who perform contract services for the federal government within the U.S.A., on grounds that this is barred by the Illegal Immigration Reform and Immigrant Responsibility Act.

   The applicability of the new rule was initially suspended until February 20, 2009. However, in a January 20 memorandum by President Barack Obama’s Chief of Staff Rahm Emanuel, all executive departments and agencies were asked to “consider extending for 60 days the effective date of regulations that have been published in the Federal Register but [have] not yet taken effect.” On January 30, Defense Department, GSA and NASA published in the Federal Register an amendment to the final rule, delaying its applicability date until May 21, 2009. The January 30 amendments notes that the delay is “in order to permit the new Administration an adequate opportunity to review the rule,” an indication that it may be subject to change.

3. 2009 Poverty Guidelines Updated for Form I-864

   On January 23, 2009, updated “poverty guidelines” of the U.S. Department of Health and Human Services (“HHS”) were published in the Federal Register . As is typical, the poverty guidelines increased to account for cost of living adjustments for the last calendar year as measured by the Consumer Price Index.

   Section 212(a)(4) of the Immigration and Nationality Act (“INA”) makes inadmissible to the U.S.A. “any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” In determining whether a prospective immigrant is likely to become a public charge, the INA specifies that certain factors – including age, health, family status, assets, education and skills – are to be assessed.

   Any family-based petitioner must submit Form I-864 and supporting documents to the agency so that it can make the necessary “public charge” determination. In doing so, a consular or immigration officer refers to the poverty guidelines established by HHS. For immigrant visa and adjustment of status applicants subject to the I-864 contractual affidavit of support requirement, the financial sponsor(s) must document ability to maintain an annual income equal to at least 125 percent of the federal poverty line applicable to the size of the sponsor’s household.

   For most purposes, the new guidelines became effective on the date of publication. However, at this writing USCIS has not yet updated its online Form I-864P regarding the 125 percent multiple that applies to immigration matters. When it does, we expect that a household of two within the 48 contiguous states will require documentation verifying $18,213 in income (an increase of $713 over last year). This amount is derived from the HHS poverty guideline of $14,570 for a household of two, and adding the 25 percent mandated by INA Section 212(a)(4). A household of three will require $22,888 (an increase of $888). Higher figures apply to residents of Alaska and Hawaii.

   The new amounts will be reflected in an updated Form I-864P. Readers should refer to the USCIS web site at www.uscis.gov and click on “Immigration Forms” to ascertain when the agency imposes the new guidelines for immigration purposes. In the meantime, the HHS notice may be found at http://edocket.access.gpo.gov/2009/E9-1510.htm.

4. Senator Gillibrand’s Evolution

   The latter half of January saw many changes in our nation’s capital, not least among them the shift toward Democratic majorities in the House and Senate, as well as a new president, also a Democrat. The changes in Washington were accompanied by drama in New York State as Governor David Paterson’s selection process to replace Senator Hillary Clinton, newly appointed U.S. Secretary of State, by turns fizzled and sizzled.

   Whatever the back story, Governor Paterson’s choice of former Representative Kirsten Gillibrand as New York’s junior senator has led to much commentary on her views regarding a variety of contentious issues including guns (she has been endorsed by the National Rifle Association), the Wall Street bailout (she voted against it), and immigration (reports widely cite her opposition to “amnesty,” driver licenses for illegal aliens, and “sanctuary cities,” while favoring English as the official language, increasing sanctions on employers, and deputizing police officers to carry out immigration enforcement). As to specific bills, she has the following record:

   - voted in favor of H.R. 6633, to evaluate and extend the E-Verify program for employment eligibility confirmation
   - voted in support of a motion to H.R. 5719, the Taxpayer Assistance and Simplification Act, to deny tax exempt interest to “sanctuary” cities and states
   - voted to support an amendment that would prohibit DHS appropriations from being distributed to states and localities having “sanctuary policies” that prohibit or inhibit communications with federal authorities
   - co-sponsored H.R. 4088, the Secure America through Verification and Enforcement (SAVE) Act of 2007, which would have mandated use of E-Verify by all employers, barred employers from deducting from their gross income wages paid to unauthorized aliens, and increased alien detention facilities
   - voted in favor of an amendment to H.R. 2638, the appropriations bill for the DHS, redirecting $89 million to border security efforts involving construction of fencing along the U.S. – Mexico border
   - voted for an amendment to H.R. 2638, to provide $26.4 million in funding to train and support local police officers in immigration law enforcement
   - voted in favor of an amendment to H.R. 5818, the Neighborhood Stabilization Act of 2008, clarifying that illegal immigrants would be ineligible for financial assistance under the bill

   We note that the foregoing data is from a profile of Senator Gillibrand at www.numbersusa.com, a self-described “immigration-reduction organization.” The group is one of many that issues “grades” to elected representatives based upon how closely their votes comport with the organization’s creed. According to www.numbersusa.com, Gillibrand earned a “B” grade during her tenure as Representative to New York’s 20th congressional district.

   Numbers USA touts its independence and states that “[n]othing about [its] website should be construed as advocating hostile actions or feelings toward immigrant Americans” [sic]. The Southern Poverty Law Center (“SPLC”), however, sees the organization differently. In a special report issued this month, the SPLC states that Numbers USA, the Federation for American Immigration Reform, and the Center for Immigration Studies “are all part of a network of restrictionist organizations conceived and created by John Tanton, the ‘puppeteer’ of the nativist movement and a man with deep racist roots.” The SPLC report states that the three groups “were key players in derailing bipartisan, comprehensive immigration reform that had been expected by many observers to pass” in 2007. The SPLC report, The Nativist Lobby, Three Faces of Intolerance , is online at http://www.splcenter.org/pdf/static/splc_nativistlobby_022009.pdf.

   Gillibrand’s “B” is the highest grade given to any New York member of Congress by Numbers USA - well above the “D” given to the state’s delegation as a whole - and is likely to change. Her counterpart, New York’s senior Senator Charles Schumer, earns a “D-” grade by the same organization, as did former Senator Hillary Clinton prior to her appointment as Secretary of State. Recent reports indicate that Senator Gillibrand is likely to align herself more closely with her state colleagues now that she represents a much broader constituency than that of the 20th congressional district.
   
   Senator Gillibrand’s (former?) positions on immigration issues become somewhat more interesting in light of the fact that her husband, according to a February 2 article in The New York Times , “remains a British national.” But they are most interesting because of the speed with which she is willing to “broaden” her views since her appointment to the Senate. As described in the Times article, “[i]t was a refrain heard often in the last 10 days. The occasional impression is that the new senator’s views are evolving at a speed sufficient to send Charles Darwin spinning back to his notebooks.” As Senator Gillibrand expeditiously “broadens” her views, we hope that she earns a failing grade by www.numbersusas.com, and thereby a stellar grade by those having a different notion of what makes America great.