USCIS Update June 26, 2009

USCIS Issues Guidance on Employment Eligibility Verification Form

Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009.

USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.

USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

For more information on USCIS and its programs, visit www.uscis.gov.

– USCIS

From USCIS:

The E-Verify and SAVE systems will be unavailable from 9:00 AM Eastern Time Saturday June 27, 2009 until 5:00 AM Eastern Time Monday June 29, due to systems maintenance.

The Cato Institute's Jim Harper, one of the most vocal critics of E-Verify, writes a new piece on privacy concerns with the electronic employment verification system.

USA Today reports.

From SHRM:

The House Appropriations Committee approved a two-year extension for E-Verify—the federal government’s electronic employment verification program—by a voice vote on June 12, 2009. The reauthorization to extend funding for E-Verify through fiscal year 2012 was included as part of the Department of Homeland Security’s (DHS) $42.6 billion spending package for fiscal year 2010. The current authorization for E-Verify is set to expire on Sept. 30, 2009.

DHS has announced plans to deploy a Compliance Tracking and Management System (CTMS). According to a recently released DHS report:

CTMS collects and uses 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. USCIS is also expected to share information from CTMS with Immigration and Customs Enforcement as part of that agency's immigration enforcement efforts.

The same report outlines the intended ways the data will be used:

• Fraudulent use of Alien-Numbers (A-Numbers) and SSNs by E-Verify users;
• Termination of an employee because he receives a tentative non-confirmation (TNC)
• Failure of an employer to notify DHS, as required by law, when an employee who receives a final non-confirmation (FNC) is not terminated;
• Verification of existing employees (as opposed to new hires);
• Verification of job applicants, rather than new employees (pre-screening);
• Selectively using E-Verify or SAVE for verifications based on foreign appearance, race/ethnicity, or citizenship status;
• Failure to post the notice informing employees of participation in E-Verify;
• Failure to use the E-Verify, consistently or at all, once registered;
• Failure of SAVE agency to initiate additional verification when necessary;
• Unauthorized searching and use of information by a SAVE agency user; and
• Fraudulent use of visas, permits, and other DHS documents by SAVE users

John Morton, assistant secretary for U.S. Immigration and Customs Enforcement in the Department of Homeland Security, talked about E-Verify on Tuesday:

Morton defended E-Verify, saying that it instantly confirms 97 percent of queries. But he acknowledged that the 3 percent rejection rate, in addition to the detection of unauthorized workers, could signal problems with the system.

“There are a lot of people who are abundantly aware of the criticisms,” Morton said. “They are trying to address them. There is a commitment to getting E-Verify right. We think E-Verify, while recognizing it has some issues, is a good working model.”

From the LA Times:

A “forgery-proof” worker ID card, secured with biometric data such as fingerprints, is a favored idea of the new chairman of the Senate immigration subcommittee, Charles E. Schumer (D-N.Y.).

Schumer, who will lead the effort to craft the Senate’s comprehensive immigration reform legislation, has publicly espoused the card as the best way to ensure that all workers are authorized.

“The ID will make it easy for employers to avoid undocumented workers, which will allow for tough sanctions against employers who break the law, which will lead to no jobs being available for illegal immigrants, which will stop illegal immigration,” Schumer wrote in his 2007 book, “Positively American.”

“Once Americans are convinced that we will permanently staunch the flow of illegal immigration, they will be more willing to accept constructing a path toward earned citizenship for those who are already here.”

A group of supporters of a proposal in Oakland County, Michigan to mandate the use of the E-Verify electronic verification system by employers in the area are rallying to support the county commissioners behind the plan.

Just days after the Obama Administration told a court it needed another month to decide how it plans to proceed with respect to litigation seeking to kill DHS' proposed no-match rule, the LA Times reports

No immigration agents descended on Overhill Farms, a major food-processing plant in Vernon. No one was arrested or deported. There were no frantic scenes of desperate workers fleeing la migra through the gritty streets of the industrial suburb southeast of downtown Los Angeles.

For more than 200 Overhill workers, however, the effect was devastating: All lost steady jobs last month and now find themselves in a precarious employment market, without severance pay or medical insurance. It wasn't a hot tip or an undercover informant that helped seal their fates, but a computer check of Social Security numbers.

"A desktop raid" is how the workers' representative, John M. Grant, vice president of Local 770 of the United Food and Commercial Workers International Union, described the scenario.

Overhill, a $200-million-a-year company that provides frozen meals for clients such as American Airlines, Panda Express, Safeway and Jenny Craig, says it had no choice: An Internal Revenue Service audit found that 260 workers had provided "invalid or fraudulent" Social Security numbers. The government took no action against the workers. But Overhill did: All of the employees were fired May 31.

The Social Security Administration has issued these letters in the past, but has not sent the letters for the past few years while it has waited on the DHS regulation to be finalized. The IRS says it regularly issues such letters, but if they have, they must be few in number as there has been virtually no discussion of this within the immigration bar.

From the National Immigration Law Center's Tyler Moran:

Have you ever seen the movie Groundhog Day where Bill Murray finds himself living the same day over and over and over again? Welcome to the world of E-Verify, the federal electronic employment verification system (EEVS) that purports to accurately confirm workers’ authorization for employment. Again and again policymakers have attached mandatory E-Verify proposals to any moving piece of legislation—whether it is related to the issue or not. Just today two amendments were offered to the DHS appropriations bill to expand the E-Verify system, and both were rejected. Subcommittee chair David Price (D-NC) argued that E-verify must be taken up as a part of comprehensive immigration reform – not as part of the budget. But E-verify amendments are likely to continue into the near future.

Congress has expressly made E-Verify a voluntary system, currently used by only a small fraction of employers in the U.S. This is no surprise; the system simply isn’t ready for prime time because of its well-documented weaknesses, including database errors and misuse of the program by employers. In fact, a study commissioned by the U.S. Department of Homeland Security found that the E-Verify database “is still not sufficiently up to date” to meet the requirements for accurate verification.

Despite this strong evidence on E-Verify’s failings, its expansion has become a pet project of some legislators. The House economic stimulus bill included a provision that any entity that receives funding from the stimulus use E-Verify—including churches, state and local governments, hospitals, farms, and schools. Most of these entities are not even enrolled in E-Verify and any such requirement would likely have precluded them from taking advantage of much-needed stimulus funds. The requirement was ultimately stripped from the bill, but it has come up yet again in the Omnibus spending bill, the war spending bill, and most recently the Homeland Security appropriations bill.

Congressional policymakers and the President have made clear that any comprehensive immigration reform proposal will include a mandatory EEVS, as it is viewed as part of the “enforcement” trade-off for legalization. But making E-Verify mandatory outside of this context would be a recipe for disaster. Over 7 million undocumented workers and their U.S. citizen and immigrant family members are not going to leave the country simply because an EEVS is implemented; and if they did, it would send our already-fragile economy into a tailspin. Instead, workers and their employers will simply move into the underground economy. The Congressional Budget Office estimated in 2008 that the mandatory EEVS in the Shuler-Tancredo SAVE Act would decrease Social Security trust fund revenue by more than $22 billion over ten years because it would increase the number of employers and workers who resort to the cash economy, outside of the tax system. We are already seeing this happen in Arizona where E-Verify is mandatory under state law.

E-Verify is not a magic bullet, where technology is the be-all and end-all answer to ensuring a lawful workforce. Moreover, a mandatory EEVS—and all the errors that come with it—does not just affect immigrants; it will apply to every single worker in this country—U.S. citizens and immigrants alike. Comprehensive immigration reform will not likely be debated until this fall at the earliest, so this is not the last that we will hear on E-Verify. Health care reform is right around the corner, and proposals to make E-Verify mandatory will be there too.

The White House has has asked for an additional month to formulate its position on the Social Security no-match rule that was released by President Bush but which has been held up in litigation. Assuming the judge agrees, the extension will mean that the President will have until July 10th to respond to a motion for summary judgment in the case.

The Tulsa World reports that Judge Jefferson Sellers has declined to change a February decision upholding the legality under the state constitution of House Bill 1804, one of the toughest employer immigration sanctions bills in the country. The law is still being challenged in federal court.

Arizona Democratic Representative Gabrielle Giffords has proposed a bill that would prevent states and municipalities from creating their own employer sanctions statutes and would intend focus on a new system where employers would use existing online systems (other than E-Verify) to document employer compliance with US immigration laws. Giffords believes immigration is a federal issue and that only the federal government has the resources to properly address the subject.

Kris Kobach, the drafter of many anti-immigrant, anti-employer statutes and ordinances around the US, has announced he is running for secretary of state of Kansas to stamp out the non-exist problem of "widespread" voter fraud.

From the Justice Department:

Matt J. Whitworth, Acting United States Attorney for the Western District of Missouri, announced today that eight Uzbekistan nationals were among 12 defendants indicted by a federal grand jury on RICO (Racketeer Influenced and Corrupt Organizations Act) charges related to labor racketeering, forced labor trafficking and immigration and other violations in 14 states.

"This RICO indictment alleges an extensive and profitable criminal enterprise in which hundreds of illegal aliens were employed at hotels and other businesses across the country,” Whitworth said. “The defendants allegedly used false information to acquire fraudulent work visas for these foreign nationals. Many of their employees were allegedly victims of human trafficking who were coerced to work in violation of the terms of their visa without proper pay and under the threat of deportation. The defendants also required them to reside together in crowded, substandard and overpriced apartments.

Many of those workers, added Whitworth, were employed at hotels in the Kansas City area and in Branson, Mo.

“The indictment alleges that this criminal enterprise lured victims to the United States under the guise of legitimate jobs and a better life, only to treat them as modern-day slaves under the threat of deportation,” said James Gibbons, Acting Special Agent-in-Charge, U.S. Immigration and Customs Enforcement. “The alleged conspiracy not only victimized foreign workers, but also defrauded U.S. businesses and displaced legal workers in the name of profit. ICE is committed to working closely with its law enforcement partners to target and dismantle human trafficking organizations that flout our nation’s immigration laws.” Based in Chicago, Gibbons oversees a six-state area, including Missouri.

From AFP:

The U.S. is to crack down on employers that hire illegal immigrants, shifting the focus away from controversial raids that target migrants directly, a top administration official said on Wednesday.

U.S. Secretary of Homeland Security Janet Napolitano said she had asked for prosecutions to be stepped up against employers who break immigration rules, pivoting away from contentious raids, which critics say unfairly target Hispanics.

"A primary driver of illegal immigration is the labor market and you have to go after the pull that that market has created. That means you have to go after the employers who are hire illegal labor," she said in an address at the Aspen Institute, a think tank.

"There has been a lot of controversy about so-called work-site raids, whether those were effective, whether they separated families, whether they were placing fear into people," said the former Arizona governor.

The Houston Chronicle reports that 6,100 Texas employers are now using the electronic verification system. But that only represents 1.3% of Texas employers.

The Denver Post reports that the number of participating employers has risne from 2,065 two years ago to 4,690 today.

Henningsen Foods of David City, NE and its Japanese parent company have been named in a lawsuit accusing the firm of hiring illegally present workers and terminating American workers to save money.

SK Foods in Lenmore, a tomato processor, is the target of a suit claiming it pushed down employee wages by hiring illegally present workers. The case has been filed as a class action. The employer is now bankrupt and its CEO is the subject of a federal bribery investigation, according to the Fresno Bee.

The Pierce County town would be the first to mandate E-Verify be used to screen all new public employees and businesses contracting with the local government if Lakewood Deputy Mayor Don Anderson gets his way.

About 124,000 have signed up in all and the Obama White House has just infused an additional $12 million in to the E-Verify budget. My friend Tamar Jacoby is quoted in this in depth LA Times piece.

Sholom Rubashkin and Agriprocessors are now charged with 71 counts of harboring illegally present workers. Seven federal identity-theft charges have been dropped in the wake of a recent Supreme Court decision.

Under legislation passed last year in South Carolina, the state was supposed to set up a hotline to report employers violating a new tough law cracking down on the hiring of illegally present workers. However, economic woes have forced the state to put off the project.

20 workers arrested in last year's raid at the Agriprocessors meat processing plant in Postville, Iowa have received U visas based on being victims of a crime.

Ohio Republicans are proposing a bill that would mandate the state's employers use the federal database.

Georgia Governor Sonny Perdue has signed HB 2, a bill that would now impose penalties on local governments and state contractors that fail to run new hires through the E-Verify electronic employment verification database as required under a 2006 law. The new law takes effect on January 1st.

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