Global Mobility & Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Mobility & Immigration Counsel

By Avani Patel

The Department of Justice (DOJ) recently reached a settlement with a national employer with regard to a complaint brought forth by an individual alleging that the company retaliated against him for threatening to pursue his legal rights under the anti-discrimination provision of the Immigration and Nationality Act (INA). The INA's anti-discrimination provision covers 4 types of discrimination: 1) citizenship/immigration status discrimination; 2) national origin discrimination; 3) document abuse; and 4) retaliation or intimidation.

The individual brought a complaint of retaliation against the company after it rescinded a job offer due to an error in the individual’s Social Security number. The individual was an immigrant with proper work authorization. When the company did not renew the offer for employment, even after the individual presented documentation demonstrating his valid work authorization, the individual told the company that they were engaging in unlawful discrimination under the INA’s anti-discrimination provision by refusing to hire him. The employee brought his claim to the DOJ.

On February 20, 2013, the DOJ reached an agreement with the employer, wherein the company will pay $3,000 in civil penalties to the DOJ and back pay in the amount of $1,800 to the individual. In addition, the company will undergo trainings conducted by the DOJ. The trainings will be on the INA’s anti-discrimination provision. The DOJ did not file a complaint in this matter.

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By Michael J. Lehet

An Administrative Law Judge with the Office of the Chief Administrative Hearing Officer (OCAHO) has rejected a request by U.S. Immigration and Customs Enforcement (ICE) to fine a California restaurant more than $22,400 for not completing I-9 forms on 24 employees. Although the restaurant, La Hacienda Mexican Café, admitted it did not complete the I-9 forms, and therefore violated federal law, Administrative Law Judge Ellen Thomas concluded the circumstances did not warrant fining La Hacienda $935 for each missing I-9.

Under federal law, new hires must complete Section 1 of the I-9 no later than the first day of employment and their employers must complete Section 2, based on original documentation of the employees’ identity and work authorization, within three business days thereafter. Failure to accurately complete the I-9 may result in a penalty of $110 to $1,100 per individual, depending on the percentage of non-compliant or missing I-9 forms. ICE may also consider additional factors to either increase or decrease the penalty, including the size of the employer, the employer’s good faith, the seriousness of the violations, whether the individuals involved were work authorized, and prior violations, if any.

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By Darren Nadel and Jordan Cornett

The Colorado Division of Labor has recently stepped up its enforcement of Colorado’s Employment Verification Law. The Employment Verification Law, codified at Colorado Revised Statutes section 8-2-122, became effective on January 1, 2007, and applies to all public and private employers who transact business in Colorado. In general, the Employment Verification Law requires employers to meet the following two requirements:

Requirement #1: Within 20 days after hiring a new employee, the employer must complete an affirmation affirming the following: (1) the employer examined the legal work status of the employee; (2) the employer retained copies of the documents the employee presented for completion of the employee’s federal Form I-9 (such as a driver’s license and Social Security card); (3) the employer did not alter or falsify the employee’s identification documents; and (4) the employer did not knowingly hire an undocumented worker.

The employer must retain a paper or electronic copy of the affirmation for the term of employment of each employee. A sample affirmation that the Colorado Division of Labor requires for compliance is available here.

Requirement #2: The employer must create and retain a paper or electronic copy of the documents that the employee presents for completion of the employee’s federal Form I-9 (such as a driver’s license and Social Security card).

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Reproduced with permission from Law360. Copyright © Portfolio Media, Inc.

By Ian Macdonald

On June 25, 2012, the U.S. Supreme Court issued a split decision regarding Arizona’s 2010 immigration law, Senate Bill (SB) 1070. The court made clear that the federal government sets immigration policy and states will not be allowed to preempt federal powers.

States may, however, continue to require businesses to register for and use E-Verify. Recent debate makes it clear that neither U.S. Congress nor states will be allowed to ignore immigration issues.

In its decision, the Supreme Court recognized the challenges that Arizona faces as a result of undocumented workers. The court made it clear, however, that Arizona could not preempt federal law. The court struck down Section 3 of the Arizona law, which made it a crime for an individual to fail to apply for and carry proper immigration documentation showing lawful status.

The court also struck down Section 5, which made it illegal for an undocumented individual to apply for and perform work, and Section 6, which authorized the warrantless arrest of individuals where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

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By Michael J. Lehet

The Civil Rights Division of the Department of Justice (DOJ) recently issued a series of “dos” and “don’ts” for employers audited by Immigration and Customs Enforcement (ICE). These self-described best practices focus on steps employers should take to avoid charges of discrimination when faced with I-9 audits.

The “dos” include developing a transparent process for interacting with employees during the audit, particularly those identified by ICE as having deficient I-9 forms or suspect identity and/or work authorization. The DOJ recommends that employers communicate in writing with these employees to notify them of the audit and to describe the specific basis for the deficiency or discrepancy and what information or documents are needed. The DOJ also recommends employers explain that the information or documents sought are in response to the audit and provide employees with a “reasonable” (but unspecified) amount of time to respond. If workers are represented by a union, the DOJ advises that employers inform the union about the audit and investigate whether a collective bargaining agreement triggers any obligations (e.g., to ensure that any adverse employment action taken as a result of the I-9 audit is in compliance with procedures and due process set forth in the agreement).

In addition, the DOJ offers several “don’ts” – each of which could lead to charges of employment discrimination. In particular, the DOJ advises that employers avoid singling out employees solely because they “look or sound foreign,” or based on assumptions about their work authorization (e.g., selectively scrutinizing the I-9 forms of employees of a particular race or national origin). Other “don’ts” include suspending or terminating employees without providing them a reasonable opportunity to comply, as well as either limiting the range of permissible I-9 documents or requiring more information or documents than required by ICE.

The DOJ’s guidance comes in the midst of an unprecedented uptick in I-9 audits by ICE.

Photo credit: Aggressive Entertainment

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On September 28, 2011, U.S. Immigration and Customs Enforcement (ICE) announced that it arrested more than 2,900 convicted criminal aliens and fugitives during a 7-day “Cross Check” enforcement operation. The operation was carried out in all 50 states and four U.S. territories by ICE officers and agents in coordination with local, state and federal law enforcement agencies. All detained individuals had prior criminal convictions; more than half for felony violations. Additionally, 681 individuals were fugitives who had previously been ordered to leave the country but failed to do so; 386 individuals had previously been removed from the country multiple times and had illegally re-entered the U.S.

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Under the H-1B visa program, an employer may employ foreign workers in occupations requiring theoretical or technical expertise in a specialized field. An H-1B visa holder is issued a Social Security number (SSN) but is only authorized to work for his or her sponsoring employer.

In response to a recent Department of Homeland Security (DHS) study and criminal investigations launched by the Department of Justice (DOJ) concerning visa fraud, the Social Security Administration’s Office of the Inspector General (OIG) set out to assess whether H-1B workers were properly using their SSNs. In its September 2011 Audit Report, H-1B Workers' Use of Social Security Numbers, the OIG estimated that 18% of H-1B workers assigned a SSN in 2007 may have used their SSN to work for a non-approved employer: specifically, 11% posted wages from an employer other than their approved employer, and 7% posted no wages from fiscal years 2007 to 2009.

Based on its findings, the OIG recommended that the Social Security Administration work more closely with DHS and establish a data match agreement to help DHS identify and reduce improper SSN usage by H-1B visa holders.

Photo credit: Aggressive Entertainment

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By Kelly Reese

On August 29, 2011, U.S. District Judge Sharon Blackburn temporarily enjoined the enforcement of Alabama’s recently enacted immigration law, House Bill 56 (HB 56), which was due to take effect September 1. The injunction will remain in effect until the court enters its ruling on the preliminary injunction or until September 29, whichever comes first. Judge Blackburn’s Order (pdf) states that the court will rule on the merits of the pending Motions for Preliminary Injunction no later than September 28.

The U.S. Department of Justice (DOJ) filed the lawsuit in the U.S. District Court (Northern District of Alabama) against the State of Alabama, alleging that HB 56 is preempted by federal law. The DOJ asked the court to find HB 56 invalid, null and void; and sought a preliminary and permanent injunction prohibiting its enforcement.

Two similar lawsuits, also seeking preliminary and permanent injunctions prohibiting enforcement of HB 56, were filed by religious and public interest entities. Those two cases have been consolidated with the DOJ lawsuit.

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As reported by Politico.com, Immigration and Customs Enforcement (ICE) recently notified 1,000 companies in 50 states that they will be subject to an immigration audit wherein ICE inspects employers’ hiring records, e.g., Form I-9s and supporting documents. This latest round of notices brings the tally to more than 2,300 audits to date in Fiscal Year (FY) 2011 (October 1, 2010 to September 30, 2011), compared to a total of 2,196 during FY 2010.

Audits have been a central theme of the Obama administration’s immigration enforcement strategy. Immigration officials’ focus has shifted to employer, versus employee, noncompliance, the rationale being that the volume of illegal immigration will decrease if employers stop hiring undocumented workers. To prevent such hiring, enforcement agencies use their ability to impose civil and criminal penalties on employers.

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Georgia Governor Nathan Deal has signed into law House Bill 87 (pdf), a sweeping, Arizona-style immigration enforcement bill that, among other provisions, requires employers to use E-Verify, the federal electronic employment authorization program. Provisions of the “Illegal Immigration Reform and Enforcement Act of 2011” affecting private employers amend the Georgia Code as follows:

• Private employers must register with and use E-Verify to confirm new hires’ legal work status under the following deadlines:
  • Employers with 500 or more employees must comply by January 1, 2012.
  • Employers with more than 100 but less than 500 employees must comply by July 1, 2012.
  • Employers with more than 10 but less than 100 employees must comply by July 1, 2013.
• Business licenses, occupational tax certifications, and other documents required to operate a business will not be issued until the employer submits an affidavit attesting that it utilizes E-Verify or is exempt from the requirement (because it employs fewer than 11 employees or otherwise does not fall within the statute’s requirements). The Georgia Attorney General’s Office will provide a form affidavit for this purpose.

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By Neil M. Alexander and Michael J. Lehet

In our July 2010 ASAP Update, Littler discussed the federal district court decision temporarily enjoining enforcement of certain provisions of Arizona's controversial "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070"). On April 11, 2011, the Ninth Circuit Court of Appeals issued an opinion affirming the district court ruling.

Like the district court decision, the Ninth Circuit opinion does not impact those provisions of SB 1070 that amend the Legal Arizona Workers Act (LAWA). Consequently, LAWA will continue to provide an entrapment defense to employers charged with knowingly or intentionally hiring undocumented workers. LAWA will also continue to require that employers keep a record of each E-Verify verification. Furthermore, the Ninth Circuit opinion does not affect the language of SB 1070 making it a Class 1 Misdemeanor for occupants of a motor vehicle stopped on a street, roadway, or highway, to hire and pick up, or attempt to hire and pick up, passengers for work at a different location, if the motor vehicle blocks or impedes the normal movement of traffic.

The opinion is the second Ninth Circuit decision to weigh in on Arizona's recent immigration debate. As explained in our September 2008 ASAP, Ninth Circuit Court of Appeals Upholds Legal Arizona Workers Act, the court previously sided with the district court and ruled that LAWA was constitutional. That decision is currently on review before the U.S. Supreme Court. A ruling from the high court is expected within the next several months.

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Arizona legislators continue to press forward with immigration-related proposals. State Senate President Russell Pearce, sponsor of the infamous SB 1070, recently introduced SB 1611 (pdf), a wide-ranging immigration enforcement bill. On February 22, 2011, the State Senate Appropriations Committee approved the bill by a 7-6 vote, with two committee Republicans voting against the bill, according to Courthouse News Service.

Of interest to employers is Section 9 of SB 1611, which would amend Arizona’s E-Verify statute. Since December 31, 2007, Arizona employers have been required to use E-Verify to authenticate new hires’ legal work status (Ariz. Rev. Stat § 23-214). SB 1611 amends that statute to permit business license suspension for failure to provide proof that the entity is registered with, and participating in, the E-Verify program. If the state attorney general discovers noncompliance, notice will be issued to the business, which will have six months to comply. If, after six months, the business remains noncompliant, the attorney general can petition a state court to order the appropriate agencies to suspend all licenses held by the business. The suspension will remain in effect until the business complies.

The bill’s other enforcement provisions include:

• making it a crime (punishable by a 30-day minimum jail sentence) to drive a motor vehicle while in the country illegally;
• requiring schools to collect information on students’ legal status and to report to law enforcement if families do not provide the necessary documents or if the documents appear false; and
• requiring public agencies to verify renters’ immigration status and to evict everyone living in a unit if any person living in that unit is found to be an illegal immigrant.

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As discussed here previously, legislators in many states have been introducing legislation mimicking Arizona’s controversial immigration legislation, SB 1070. In the past week, such legislation has progressed, albeit slightly, in South Carolina, but has been taken off the table in Colorado.

In South Carolina, The Sun News reported that S. 20, an Arizona-style immigration bill introduced by Senator Lawrence Grooms, was moving forward. However, after clearing the State Senate Judiciary Committee, the bill failed to garner sufficient votes to set it for Special Order, i.e., moving the bill to the top of the calendar. Accordingly, it is presently unknown when the bill will be voted on by the entire State Senate.

In Colorado, the sponsor of House Bill 1107, Rep. Randy Baumgardner, abandoned his attempt to institute an Arizona-like law, believing that legal challenges would burden taxpayers, reports Fox News Latino. On February 14, the House Committee on Agriculture, Livestock, & Natural Resources indefinitely postponed the bill. As we previously noted, a group of Republican Colorado lawmakers recently traveled to Arizona to learn more about its approach to immigration legislation.

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On February 14, Senator Orrin Hatch (R-UT) re-introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S. 332). Senator Hatch first introduced this bill on September 29, 2010, but it died in committee. The current bill has been referred to the Senate Judiciary Committee. As outlined in our report of the bill’s initial introduction, Senator Hatch’s bill includes a long list of immigration enforcement provisions, such as requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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On January 27, the Mississippi House of Representatives approved an immigration enforcement bill providing for fines of up to $25,000 per day against employers that hire unauthorized workers. As reported by the Clarion Ledger, the House amendments to Senate Bill 2179 are a significant departure from the original provisions, paving the way for a contentious reconciliation process. Before the bill can become law, it needs to be approved by the Senate, then signed by the Governor.

Originally, S.B. 2179 provided that a Mississippi resident could sue public officials or agencies that adopt or implement policies limiting or restricting the enforcement of federal immigration laws. Courts could impose civil penalties of between $500 to $5,000 for each day the policy remained in effect after a suit was filed.

The House amendments not only bring in employers as the enforcement target, but also dramatically increase the penalties. The amendments provide that a person may sue an employer “to challenge the hiring practices of the employer as being in violation of . . . the enforcement of state or federal immigration laws.” Moreover, courts could impose penalties of between $5,000 and $25,000 for each day the employer committed a violation. 

Photo credit: MBPhoto, Inc.

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On September 29, 2010, Senator Orrin Hatch (R–UT) introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S.3901) (pdf). The bill is the third notable piece of immigration legislation introduced last week, together with the comprehensive immigration reform bill introduced by Senators Menendez and Leahy, and Senator Chambliss’ HARVEST Act (relating to agricultural workers). Senator Hatch’s bill addresses numerous immigration enforcement topics, and notable provisions include:

• Illegal aliens could only be paroled or granted deferred action on a case-by-case basis (for urgent humanitarian reasons or significant public benefit). Mass paroles and deferrals would be prohibited.
• Any state, county, city, or township that is eligible to participate in the Secure Communities program or to cross-designate local law enforcement officers to perform immigration law enforcement functions under section 287(g) (pdf) and does not participate in such programs may not receive compensation for incarceration expenses of illegal aliens.
• Individuals known or reasonably believed to be members of a known criminal organization regularly engaged in transnational criminal activity would be ineligible for visas.
• Elimination of the Diversity Visa Program, unless Congress signs off on changes designed to combat fraud and eliminate abuse in the program.
• Annual reporting by the Secretary of Health and Human Services on welfare benefits provided to states, and the portion thereof provided to illegal immigrants.
• Limiting states’ expansion of the Children’s Health Insurance Program (CHIP) coverage to noncitizen children or noncitizen pregnant women.
• Requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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The Houston Chronicle is questioning the efficacy of immigration-related employer audits after obtaining documents concerning 430 “closed” audits conducted by U.S. Immigration and Customs Enforcement (ICE). Although the records revealed potentially egregious violations (e.g., 93% of one audited company’s workforce had “suspect” documents on file), the Chronicle contends that insufficient action was taken in these instances. Instead of levying fines against companies, initiating deportation proceedings against undocumented workers, or criminally charging noncompliant employers, the Chronicle alleges that ICE’s enforcement actions (in most cases, ordering the employer to dismiss the workers with suspect documents) were inadequate.

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The Department of Homeland Security’s (DHS) Office of Immigration Statistics has released the 2009 Yearbook of Immigration Statistics (pdf). The Yearbook provides statistical data on U.S. immigration, specifically:

• Nonimmigrant Admissions: The number of foreign nationals admitted to the United States on a temporary basis, e.g., as tourists, students, business visitors, or temporary workers. Notably, the number of admissions based on H-1B status (temporary workers in specialty occupations) has decreased from a peak of 461,730 in 2007, down to 409,619 in 2008 and 339,243 in 2009.
• Legal Permanent Residents: The number of foreign nationals who became legal permanent residents.
• Refugees and Asylees: The number of asylum or refugee status applicants.
• Naturalization: How many foreign nationals became naturalized U.S. citizens.
• Enforcement Actions: What enforcement actions were taken by DHS, including apprehension of illegal aliens, removals and prosecutions.

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Proposed legislation in Pennsylvania and New Jersey would impose stricter work authorization verification requirements on employers.

Pennsylvania

House Bill 1502 would require all contractors and subcontractors on public works projects to verify the employment eligibility of new employees through E-Verify, the federal electronic employment verification system, and to verify existing employees’ Social Security numbers. In June 2010, this bill was referred to the House State Government Committee.

House Bill 1503 would require all construction industry employers to verify the employment eligibility of new employees through E-Verify and to verify existing employees’ Social Security numbers. This bill was passed by the House in June 2010 and is currently in the Senate Labor and Industry Committee.

Employers that in good faith rely on federal programs (E-Verify and the Social Security Number Verification Service) to verify new employees’ legal work status and existing employees’ Social Security numbers will be immune from sanctions. However, employers face debarment from public work contracts (HB 1502) or license forfeiture (HB 1503) for noncompliance. Additionally, employers could face civil liability for retaliating against employees who complain about alleged violations or participate in investigations, hearing or inquiries concerning alleged violations.

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During a special session held this morning, the Senate passed a $600 million spending bill (pdf) that will increase law enforcement presence at the United States’ southwestern border with Mexico and will finance additional aerial drones and construction of two operating bases. The Senate passed an identical bill (S. 3721) on August 5 before adjourning for recess, but for technical reasons the Senate needed to approve the version of the bill approved by the House of Representatives on August 10 before sending it to President Obama for signature.

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Since October 2009, U.S. Immigration and Customs Enforcement (ICE) has levied over $600,000 in fines against Texas businesses for immigration-related violations ranging from incomplete I-9 records to employment of illegal immigrants, reports the Houston Chronicle. The largest fine ($360,000) imposed on a single business stemmed from an investigation commenced by the Bush administration in 2008. The newspaper’s review of federal records revealed a focus on fining employers rather than arresting undocumented workers, reflecting the Obama administration’s new immigration enforcement strategy that focuses on employer culpability through audits.

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Audits, not raids, are the centerpiece of the Obama administration’s immigration enforcement strategy, reports the New York Times. In the past year, Immigration and Customs Enforcement (ICE) audited over 2,900 business to determine whether illegal immigrants were employed, and, in 2010, it imposed $3 million in civil fines. While audits are less visually dramatic than raids, the effects on workers and businesses are not.

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With the July 2, 2010 submission deadline approaching, individuals in Washington are trying to collect 241,153 signatures to place an immigration-related measure on the November ballot, reports the Seattle Times. Employment-related provisions of proposed initiative I-1056 (pdf) include:

• Requiring all employers, after making an offer of employment, to verify the individual’s eligibility to work in the United States, using programs such as E-Verify.
• Making it an unlawful employment practice to terminate a U.S. citizen, or a permanent resident applying for naturalization, when an illegal alien is employed at the same job site or in a similar position at a different site.

Since 2006, similar measures have failed to get certified, and the chances for a 2010 measure are slim, given the campaign’s lack of funds and the absence of major party support for the measure.
 

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Although some contend a comprehensive immigration bill is not probable as midterm elections near, President Obama has urged Republican lawmakers to work with Democrats in passing a law that would create an “orderly, fair, humane immigration framework in which people are able to immigrate to this country in a legal fashion,” reports Reuters. President Obama’s request followed his ordering 1,200 National Guard troops to Arizona’s border with Mexico, which he contends will not alone solve the problem.

The troop deployment was met with mixed reviews. Senator John McCain (R-AZ) contends that a deployment of at least 6,000 troops is necessary. Some view the move as an attempt by the president to show Republicans and centrist Democrats that he is serious about immigration, while certain Latino activists contend that it is merely a political gesture and will only negatively impact their community.

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The New York Times reports that the Massachusetts Senate has voted 28 to 10 in favor of an immigration-related amendment (pdf) to the state budget bill that would require state contractors to verify that their workers are legally authorized to live and work in the United States. The proposed law also would penalize contractors violating the law by prohibiting them from doing business with the state. Additionally, the state attorney general’s office would be required to set up a hotline by which people could anonymously report alleged hiring of illegal immigrants, and to investigate such allegations.

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The Washington Post reports that acting Solicitor General Neil Katyal has submitted a brief (pdf) on behalf of the Obama administration urging the U.S. Supreme Court to review and invalidate the Legal Arizona Workers Act (LAWA), a 2008 law that imposes sanctions far greater than those prescribed by federal law on employers that hire illegal immigrants (Note: LAWA is a different law than Arizona’s recently enacted and controversial immigration enforcement law.). The petition (pdf) for Supreme Court review was originally filed by a coalition that includes the U.S. Chamber of Commerce, civil libertarians and Latino groups.

The brief presents the administration’s position that federal law preempts this state law, and argues that upholding the law would:

"disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country."

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Of the 180 businesses that recently received audit notices from U.S. Immigration and Customs Enforcement, 30 are located in Tennessee. Nashville Public Radio reports that these audits are targeting businesses that serve as government contractors, including nuclear facilities, military bases, defense facilities, and companies in the financial sector.

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With many in the nation watching, Arizona Governor Jan Brewer signed the "Support Our Law Enforcement and Safe Neighborhoods Act" ("SB 1070") into law. The legislation represents Arizona's latest effort to combat illegal immigration and is now the centerpiece of a national political firestorm, including criticism from President Obama and numerous public interest groups. In addition, SB 1070 already is the subject of two federal lawsuits challenging its constitutionality. Lost among this debate, however, are those provisions of the law directed toward Arizona employers. To learn more about the law and its implications for employers, please continue reading Littler's ASAP What Arizona's Controversial Immigration Law Means for Employers by Neil M. Alexander and Michael J. Lehet.

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A 26-page outline of a new proposed immigration overhaul bill would require all employers to use a newly-created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verifying employee work authorization. Within 18 months of the proposed bill’s enactment, the Social Security Administration would be required to issue biometric social security cards, which within five years would serve as the only acceptable document employers could use for employment verification purposes. The proposal also calls for a 300 percent increase in monetary fines against employers that knowingly hire illegal workers, and enhanced civil and criminal penalties against employers that engage in egregious labor violations involving unauthorized workers. To learn more about the proposal and the potential implications for employers, please continue reading at Littler's D.C. Employment Law Update blog.

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Arizona Governor Jan Brewer has signed into law an immigration enforcement bill generally acknowledged to be the “broadest and strictest immigration measure in generations.” The bill has attracted national attention, even drawing strong criticism from President Obama who, according to The Daily Telegraph, has instructed the U.S. Department of Justice to examine the measure’s legality.

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A controversial Arizona immigration enforcement bill (S.B. 1070) moved one step closer to becoming law when the state senate approved the measure on April 19. The bill has been sent to Governor Jan Brewer for her signature or veto. As reported by The Los Angeles Times, most observers expect her to sign the bill. Brewer has until April 24 to act on the bill; if she neither signs nor vetoes the bill, it will become law within 90 days of the end of Arizona’s legislative session.

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The New York Times reports that Arizona legislators have given preliminary approval to legislation that primarily concerns State enforcement of federal immigration laws. H.B. 2632, which is nearly identical to a bill passed in February by the state senate (S.B. 1070), would, among other things, allow police officers to charge illegal immigrants with criminal trespassing based solely on their presence in Arizona. The two bills must now go through reconciliation, which is expected to occur within the next two weeks.

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U.S. Immigration and Customs Enforcement (ICE) announced that it has served Notices of Inspection (NOIs) on 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. ICE will review these businesses’ hiring records to determine their compliance with federal employment eligibility verification laws. As previously discussed, in 2009 ICE developed a new enforcement strategy that includes significantly increasing the number of forensic audits. In December 2009, 1,000 businesses faced an audit. In July 2009, ICE issued more NOIs in one day—652—than it did in all of 2008.

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AZCapitolTimes.com reports that Arizona’s senate, by a party-line 17-13 vote, passed a broad, immigration-focused bill covering a wide range of topics including law enforcement procedures, criminal law, and traffic congestion. The bill would:

• require police officers to make a reasonable attempt to determine a person’s immigration status when “practicable;”
• allow illegal immigrants to be charged with trespassing;
• make it unlawful for anyone seeking work, regardless of their immigration status, to enter a vehicle stopped on the street;
• penalize drivers who impede traffic in an attempt to hire a day laborer;
• prohibit state and local governments from adopting policies that restrict the enforcement of immigration laws; and
• require state and local governments to comply with, and assist in enforcing, federal immigration laws.

The bill now moves to Arizona’s house of representatives for consideration.

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Congressman Luis V. Gutierrez (D-IL) has unveiled comprehensive immigration reform legislation that would, among other provisions:

• strengthen border security;
• create a streamlined employment verification system;
• amend the visa program to promote the reunification of families;
• establish a commission to recommend changes to the current system of H-1B and H-2B visas for skilled workers;
• impose tougher penalties for employers who hire illegal workers; and
• legalize undocumented immigrants who register with the federal government, pay a $500 fine, learn English, pass background checks, and meet other requirements. Individuals who meet these requirements would then be eligible for a six-year visa and, finally, a green card.

In unveiling the bill, titled The Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP), Gutierrez was joined by a coalition of lawmakers, including the Congressional Hispanic Caucus, Black Caucus, Asian Pacific American Caucus and Progressive Caucus.
 

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On December 9, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano confirmed her stance that immigration enforcement is a necessity and must be achieved in conjunction with comprehensive reform of the United States’ broken immigration system. Secretary Napolitano stated, "We can no longer perpetuate a status quo that is unacceptable for workers, employers, law enforcement, faith leaders, and America as a whole. We must seize this moment to build a truly effective immigration system that deters illegal immigration, provides effective and enduring enforcement tools, protects workers from exploitation and retaliation, and creates a tough but fair path to legalization for the millions of illegal immigrants already here."

This statement, made at a Senate Judiciary Committee oversight hearing, reiterates the position of the Obama Administration and its intent to present a proposal for comprehensive immigration reform to Congress in early 2010.

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The Contra Costa Times reports that this month over 1,000 businesses will face forensic audits conducted by United States Immigration and Customs Enforcement (ICE). Many businesses, e.g., those involved in the food supply chain, have been targeted because they are connected to public safety and to the United States’ “critical infrastructure.”

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As reported previously on this blog, U.S. Citizenship & Immigration Services (USCIS) officially announced the opening of a new Verification Operations Center in Buffalo, NY. This center will employ approximately 135 people with the sole objective of performing immigration status verification for the Systematic Alien Verification for Entitlements (SAVE) and E-Verify systems. Specifically, the new center will run verification checks of employee work authorization status for companies enrolled in E-Verify, and it will confirm immigration status inquiries for government entities using SAVE. This is the first USCIS field office dedicated to monitoring compliance and ensuring the correct use of the SAVE and E-Verify programs. The Buffalo Verification Operations Center will spearhead USCIS's initiative to stop employers and third-party "investigation" companies from using E-Verify improperly. This development is the government's attempt to improve the integrity of both SAVE and E-Verify. These efforts may also facilitate the reduction of potential discriminatory effect in the application of E-Verify procedures and safeguard privacy interests.

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that today (November 19, 2009), an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.

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The New York Times reports that the Obama Administration will push to implement immigration reform measures in the first quarter of 2010. Department of Homeland Security Secretary Janet Napolitano indicated today in an address to the Center for American Progress that immigration reform will be put on the political agenda early in 2010. Napolitano sent a clear message to Congress that it should be ready for movement on immigration. Specifically, Napolitano referred to a "three-legged stool" approach that will incorporate tougher enforcement laws aimed at employers and illegal immigrants, a streamlined system for legal immigration, and a stringent process to allow illegal immigrants to become legal. It is anticipated that the Administration's focus on securing the border and targeting employers that hire undocumented workers will substantially increase while the foundation is laid to introduce an immigration reform initiative to Congress.

This entry was written by Ian R. Macdonald.

Photo credit: David Franklin

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The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country.

Read full story on Littler's Washington DC Employment Law Update blog.

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The New York Times reports that President Obama’s approach to immigration enforcement has remained similar to that of his predecessor. Employee paperwork audits have been conducted at hundreds of businesses and prosecutions for immigration violations have increased. E-Verify, the federal program that allows employers to check applicants’ work authorization status, has been expanded, as has a cooperative program between federal, state, and local officials that runs immigration checks on individuals booked at certain local jails.

The reliance on holdover policies has upset immigrant and Latino advocates, key supporters of Obama’s election, who believed the new administration would take a different, less harsh approach. Although administration officials state that they have backed away from unpopular mass factory roundups of illegal immigrants, advocates contend that the administration’s continuation of existing programs will result in further ethnic profiling and civil rights violations.

As previously discussed, Democrats are planning to introduce an immigration reform bill sometime this year or in early 2010. Anticipating a legislative battle, influential party members have suggested members alter their language when discussing the issue—e.g., abandoning the term “undocumented” in reference to illegal immigrants—to demonstrate their commitment to preventing illegal immigration and strengthening immigration enforcement.

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The Immigration and Customs Enforcement (ICE) has announced that it will begin to investigate workplaces in all 50 states to identify employers who are hiring undocumented workers. Specifically on July 1, 2009, ICE launched a comprehensive audit initiative and issued Notices of Inspection (NOIs) to 652 businesses nationwide. States are also beginning to increase their enforcement efforts so employers should take steps to ensure compliance with both federal and state immigration requirements. Continue reading Littler ASAP "Latest Developments in Employment Verification Enforcement" by Jorge R. Lopez, Chadwick M. Graham and Melissa M. Randall.

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On April 30, the Department of Homeland Security (DHS) issued a Fact Sheet discussing its revised Worksite Enforcement Strategy. The DHS enforcement strategy was revised at the direction of DHS Secretary Janet Napolitano after she expressed concerns that enforcement efforts were targeted more at employees rather than employers abusing the law. Indeed, the Fact Sheet acknowledges that there were more than 6,000 arrests related to worksite enforcement in 2008, but only 135 employers were arrested.

The revised strategy "reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by . . . knowingly hiring illegal workers." Immigration and Customs Enforcement (ICE) is to focus its resources on the criminal prosecution of employers that knowingly hire illegal workers, but will continue to arrest and prosecute illegal workers found during the course of worksite enforcement actions. ICE will also use all available civil and administrative tools, including fines and debarment, to deter illegal employment.

The Fact Sheet indicates that ICE will look for evidence of mistreatment of workers in addition to evidence indicating criminal conduct such as trafficking, smuggling, harboring, visa fraud, identification document fraud, or money laundering. Before conducting a raid and arresting workers at the site of employment, ICE will obtain indictments, criminal arrest or search warrants, or a commitment from the US Attorney's office to prosecute the employer. The existing humanitarian guidelines governing ICE’s behavior in raids affecting 150 or more employees will now apply to worksite enforcement efforts impacting 25 or more illegal workers.

The revised enforcement strategy suggests that there will be increased criminal enforcement efforts and interagency cooperative investigations. It is likely that ICE will continue the growing trend of planting agents within the employer's workforce to gather evidence of criminal activity. Going forward, it is almost a certainty that enforcement efforts will begin with an audit of I-9 compliance, particularly for employers in industries with high percentages of illegal workers, as well as for employers engaged in infrastructure projects. A recent Congressional Research Service report (PDF) analyzing unauthorized employment in the U.S. listed the following industries as having significant (over 10%) employment of illegal workers: Food Manufacturing, Agriculture, Furniture Manufacturing, Construction, Textiles and Apparel, Food Services, Administrative and Support Services, and Accommodation. Employers in these industries should review their I-9 compliance and adopt best practices to avoid adverse consequences related to employment of unauthorized workers.

This entry was authored by David Whitlock.
 

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President Barack Obama plans to begin addressing changes to the U.S. immigration system this year, even though he acknowledges that the recession makes the politics involved in this divisive issue even more challenging. As reported in The New York Times, a senior administration official stated that Obama will frame the new effort as “policy reform that controls immigration and makes it an orderly system.”

Without stating specific proposals, officials commented that the Obama administration favors legislation that would:

• bring illegal immigrants into the legal system by acknowledging that they violated the law and imposing fines and other penalties as deemed appropriate; and
• guard against future illegal immigration by strengthening border enforcement and being tough on employers who hire illegal immigrants, while creating a national system for verifying the legal immigration status of new workers.

Obama plans to speak publicly about immigration issues in May, and over the summer he will convene bipartisan working groups, composed of lawmakers and a variety of immigration groups, to begin discussing possible legislation. Administration officials are still debating the precise timing and strategy for the proposed legislation.

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Homeland Security Secretary Janet Napolitano has tapped a hot-button immigration issue by aiming enforcement efforts at employers. As reported in the Los Angeles Times, field guidelines for the Department of Homeland Security’s Immigration and Customs Enforcement agents will shift focus away from workplace raids aimed at rounding up individual undocumented workers and, instead, will go after the employers themselves. An emphasis will be placed on arresting and prosecuting employers who knowingly employ undocumented workers.

This shift is in line with a declaration made by President Barack Obama during last year’s campaign in which he claimed that past enforcement policies had failed because they focused on the individual rather than the employer. Targeting employers is a strategic attempt to reduce the supply of jobs available to undocumented workers. But with an estimated 12 million people currently living in the United States illegally, the shift raises uncertainty as to whether there is a sufficient number of willing and qualified U.S. workers to fill positions vacated when employers begin purging their workforces.

The Department of Homeland Security has made it clear that it still plans to conduct worksite enforcement raids. Still, this fundamental shift in priorities raises serious additional concerns for employers who could find themselves facing criminal charges. Even though it is difficult to prove that an employer “knowingly” employed undocumented workers—which provides a potentially large loophole for employers—the threat alone may have a significant impact on the workplace.

This entry was authored by Chad Graham.
 

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The 2008 year-end report on the federal judiciary (pdf), written by Chief Justice John G. Roberts Jr., noted that filings concerning criminal charges in immigration cases jumped by 27%, to more than 21,000.  This growth resulted mostly from filings addressing improper reentry by aliens and filings involving fraud and misuse of visa or entry permits in the five southwestern border districts.

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A record-setting settlement of claims alleging the knowing employment of illegal aliens demonstrates the government's intent to enforce immigration law through interagency task force investigations.

For more information about this development, see Littler's ASAP: Record Worksite Enforcement Settlement Sends Message to Employers of Illegal Aliens by David C. Whitlock.

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