Copland and Brenner

Table of Contents

1. Form I-9: Extensions, Enforcement, Expectations
2. Comprehensive Immigration Reform: Has Its Time Come?
3. In Brief: Recent Developments

1. Form I-9: Extensions, Enforcement, Expectations

   As employers should be aware, the Form I-9 (Employment Eligibility Verification) currently on the U.S. Citizenship and Immigration Services (“USCIS”) web site indicates that it “[e]xpires 06/30/09.” A request to approve the continued use of that form is pending with the Office of Management and Budget. In a six-sentence update posted on its web site on June 26, USCIS advised that, while the request is pending, the Form I-9 bearing a revision date of February 2, 2009 will continue to be valid.

   In another I-9 context, implementation of a final rule that would require federal contractors and subcontractors to begin using the E-Verify system to establish employee eligibility to work legally in the U.S.A. has again been delayed. The so-called federal acquisition regulation, published in the Federal Register on November 14, 2008, was initially to take effect on January 15, 2009. Following a court challenge, 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.” Thus, on January 30, an amendment to the final rule was published in the Federal Register, delaying its applicability until May 21, 2009. The January 30 amendments noted that the delay was “in order to permit the new Administration an adequate opportunity to review the rule,” an indication that it might be subject to change. The regulation was subsequently delayed two more times, most recently on June 5. The effective date of the “final rule” is now set for September 8, 2009.

   Meanwhile, on May 22, the Department of Homeland Security (“DHS”) published two notices in the Federal Register regarding monitoring and compliance issues involving its inventory of records systems. One of the notices stated that it “proposed” to establish a system of records titled “Compliance Tracing and Monitoring System” (“CTMS”), but also noted that the “proposed” system would go into effect on June 22. The CTMS will collect and use “information necessary to support monitoring and compliance activities for researching and managing misuse, abuse, discrimination, breach of privacy, and fraudulent use of USCIS Verification Division’s verification programs, the Systematic Alien Verification for Entitlements (SAVE) and E-Verify.”

   The SAVE program allows federal, state, and local government benefit-granting agencies, as well as licensing bureaus and credentialing organizations, to confirm the immigration status of non-citizens, by submitting to SAVE certain information supplied by the benefit applicant. The E-Verify program, of course, allows participating employers to verify the employment eligibility of newly hired employees, by submitting specific information supplied by the employee. The CTMS is thus intended to focus upon the “users” of those two systems; i.e., the government agencies and employers who verify eligibility information through them.

   The second notice published by USCIS on May 22, a notice of proposed rulemaking, would amend agency regulations to exempt portions of the CTMS from certain Privacy Act provisions to protect information used in criminal, civil, and administrative enforcement activities. The exemptions are described as “standard law enforcement and national security exemptions,” and are “required to preclude subjects of these activities from frustrating USCIS monitoring and compliance processes and to avoid disclosure of research techniques, as these processes and techniques may inform law enforcement investigations. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.”

   By yet another notice, published in the Federal Register on June 23, USCIS is seeking public comment on the E-Verify Program Designated Agent Process, under which a third party authorized by an employer conducts the verification process for newly hired employees. The notice states that “[t]he program design for Designated Agents has changed very little over the past several years. Accordingly, USCIS plans to review the Designated Agent process to assess how Designated Agents provide this service to their clients. The purpose of this notice is to request that Designated Agents, their clients, or others with Designated Agent experience provide their comments or suggestions for improving the Designated Agent process.” Comments are sought by August 24, 2009.

   For its part, the American Immigration Lawyers Association (“AILA”) objected to the May 22 rules in a letter to DHS dated June 22. In doing so, AILA characterized the CTMS as a means to “mine the E-verify data to support monitoring and compliance activities,” and offered the following specific objections:

   - employers “have trusted that E-Verify is not an enforcement tool of [U.S. Immigration and Customs Enforcement] but is intended by the government solely to assist employers in complying with its immigration responsibilities”
   - the regulations establish “an enforcement component in E-Verify” even though it is recognized as impossible for honest employers to distinguish genuine documents from high-quality counterfeit ones
   - “DHS did not consult with employer representatives before proposing these regulations”
   - the “proposed regulations result in the classic ‘bait and switch’”
   It is agreed that the E-Verify system is not perfect; it has been criticized for erroneous “tentative nonconfirmations” and other problems. However, the raison d’etre behind employment verification provisions in the Immigration Reform and Control Act of 1986 (“IRCA”), which established the I-9 requirement, was to impose sanctions upon employers who hire aliens not authorized to work in the U.S.A. Form I-9 itself warns that “employers are subject to civil or criminal penalties if they do not comply with” IRCA. Instances of third-party or agent completion of Form I-9, as well as sleight of hand by deeming a worker a “contractor” rather than an “employee,” represent real compliance issues. It seems a bit disingenuous, therefore, to characterize the prospect of enforcement activities based upon E-Verify use as “bait and switch.”

   Those opposing any “amnesty” provision in comprehensive immigration reform often point to the prospect of employment as the single most problematic driving force behind illegal immigration. Any agreement involving comprehensive immigration reform must address not only those already here as a result of that draw, but must also find a way to meaningfully stem the tide. As AILA pointed out in its letter, the statutory authority of E-Verify “is currently designated to terminate on September 30, 2009;” it is a “temporary and experimental program, whose long-term fate may well depend upon passage of comprehensive immigration reform.” With this in mind, reading the above notices together - and considering developments in late June, an optimist might conclude that the Obama administration is gearing up to address just that.

2. Comprehensive Immigration Reform: Has Its Time Come?

   “My administration is fully behind an effort to achieve comprehensive immigration reform.” Those words, spoken by President Obama after meeting with congressional leaders on June 25, are a tonic to those beleaguered for so long by anti-pragmatists who oppose such reform. As stated in a June 25 editorial in The New York Times, “[i]t now seems more likely than before that Mr. Obama is ready to lead the way, uniting problem-solvers in both parties out of a long-stalemated debate.”

   That editorial went on to state, “[h]e’d better, because the alternative — another crashing letdown and the traditional exchanges of blame — is awful to consider. Expectations for reform have been steadily rising since the unprecedented Hispanic turnout and Democratic victories of last November. Those hopes have been given a dreadful urgency by the harsh enforcement regime of raids and deportations begun under the Bush administration, which have piled suffering onto hopelessness for millions of people, but not brought the country any closer to a solution.”

   Notably, Congressman Steve King (R-Iowa) was not invited to the June 25 meeting despite the fact that he is the senior Republican member of the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law. This is likely due to his inflammatory and inaccurate characterization of the issues, rightfully leading to a conclusion that he could not meaningfully participate in developing pragmatic solutions to them.

   It is not only liberal stalwarts who support comprehensive immigration reform (“CIR”). In remarks following the June 25 meeting, the President stated that he wanted “to especially commend [Senator] John McCain [R-AZ], who’s with me today, because along with folks like Lindsey Graham, he has already paid a significant political cost for doing the right thing.” In his own remarks, Senator McCain was quoted by The New York Times on June 26 as stating that “the immigration overhaul had a fresh urgency because of the surge in violence along with border with Mexico. But he said a guest worker program must be part of any immigration bill.”

   It is broadly believed that guest worker and so-called “amnesty” provisions to regularize the status of some 12 million undocumented people will be the sticking points in efforts to achieve CIR. As we reported in May, the business community is committed to a significant guest (meaning temporary) worker program. Meanwhile, the A.F.L.-C.I.O. and Change to Win, rival labor federations, oppose any large temporary worker program but now support regularizing the status of those 12 million people - which they opposed during CIR efforts in 2007.

   For those interested in learning about the issues, the Immigration Policy Center has a link to a primer on comprehensive immigration reform at its web site, http://immigrationpolicy.org/index.php?content=home.

3. In Brief: Recent Developments

   Premium Processing for I-140: As of June 29, premium processing became available for certain Forms I-140, including those on behalf of EB-1 aliens with extraordinary ability, outstanding researchers and professors; EB-2 professionals with advanced degrees and those with exceptional ability not seeking a national interest waiver; EB-3 professionals, skilled workers and other workers.

   H-1B Count: As of June 26, 2009, USCIS had received approximately 44,800 H-1B petitions subject to the congressionally mandated cap of 65,000 for fiscal year 2010. We note that this total is mysteriously below the cap counts reported on May 22 (45,700) and May 29 (45,800), and that no explanation appears in the updated information. In any event, USCIS has continued to accept petitions filed for aliens who qualify for H-1B status by virtue of a bachelor’s degree or its equivalent, as well as those who qualify under the separate cap of 20,000 because they hold advanced degrees. Additional information is available at www.uscis.gov.

   Delay in permanent resident card production: On May 29, USCIS announced that applicants may face delays of up to eight weeks in the delivery of permanent resident cards, because the agency is upgrading its card production equipment. Under the circumstances, Field Offices will issue temporary evidence of permanent residence in the form of an “I-551” stamp to approved applicants. To obtain such a stamp following approval at an interview, an applicant may present a passport or a passport-style photo and government-issued photo identification to receive such a stamp. If an application for adjustment of status is approved subsequent to an interview, by a Service Center or the National Benefit Center, the applicant should schedule an INFOPASS appointment and present the above documents plus evidence of approval.