Fragomen Immigration Matters Blog

Alabama Lawmakers Move Closer to Amending Tough Immigration Measures Against Employers

Thu, 19 Apr 2012 14:46:03 GMT

On April 17, the Alabama House of Representatives’ Public Safety and Homeland Security Committee approved a set of amendments to the state’s current immigration enforcement bill, commonly known as the Hammon-Beason Act, which would ease some very tough demands placed on the state’s contractors and their subcontractors. Though we still believe wholeheartedly that immigration should be under the exclusive jurisdiction of the federal government, we do applaud the legislators for taking a second look in order to improve the bill.

Widely regarded as one of the most draconian and controversial measures in the country, the Alabama law makes it a state crime to be an undocumented immigrant, and provides the police with wide discretionary powers to arrest any suspected of being in the country illegally. Not surprisingly, implementation of the new law led to a couple of embarrassing mistaken arrests of high level managers of Mercedes Benz and Honda, both of whom have invested billions of dollars in the state. The embarrassment prompted Governor Robert Bentley to promise a review of the newly enacted statute.

Not as widely reported, but more damaging to businesses, are the provisions that require state contractors and subcontractors to participate in E-Verify. The current law attempts to mirror the Federal Acquisition Regulation’s (FAR) E-Verify requirements by mandating all state contractors to enroll in E-Verify. Moreover, just like the FAR, Hammon-Beason also requires the prime contractor to flow the E-Verify requirement down the line to subcontractors and their subcontractors. Unlike the FAR, however, the current law does not have an exception for “commercially available off-the-shelf” (COTS) items. Also unlike the FAR, prime and subcontractors also have attestation (paperwork) requirements in addition to enrolling in E-Verify. The attestation is not only between the vendor and the government, but also between each prime or subcontractor and the subcontractor below it. Finally, the prime or subcontractor does not even have to be located in Alabama to be obligated under this law.

The culmination of all these requirements in essence leads to a far more onerous result than what the FAR does to federal contractors. Consider this scenario: A maker of household products has a contract with the Alabama Department of Corrections to sell tubes of toothpaste for the prison population. The vendor has a nationwide network of subcontractors to make the caps for the tubes, but neither the vendor nor any of its subcontractors have any physical presence in Alabama. Furthermore, the vendor sells millions of tubes of toothpaste worldwide and has hundreds of subcontractors making the caps. The contract with the Department of Corrections represents less than 1% of the total worldwide sales. When the tubes are assembled, they all go to the sale warehouse for distribution, and there is no way to trace which subcontractor made the caps to which tubes. Though this is only a hypothetical, it does mirror the dilemma businesses face when they try to do business with Alabama.

In our hypothetical, the prime contractor, who admittedly subjected itself to Alabama’s laws by entering into a contract, is bound by Hammon-Beason requirements. However, how in the world is the prime contractor supposed to know which subcontractor performed any work on the products sold to the Department of Corrections? The prime contractor here has only three options: take a wild guess at who the obligated subcontractors are, completely disregard the law, or play it safe and engage in enormously burdensome process of executing Alabama-specific agreements with all its subcontractors, even if 99% of the products produced by them collectively have no connection to Alabama.

The proposed changes will obviate this predicament. The amendment that the legislature is considering at this moment would 1) redefine “contractor” and “subcontractor” to only those who have employees in the state of Alabama; 2) create a COTS exemption. The combination of these two changes will significantly lessen the burden on companies wanting to do business with the state. It will limit the reach of the state’s “long-arm” statute to only those physically in the state and not to entities that may not even be aware of an Alabama contract. It also will allow the vendors to narrow the focus of compliance to work been done specifically for the state, and not products that anyone from anywhere in the world could purchase from a grocery store.

One important point that cannot be overlooked is that if Alabamian employers only had to adhere to one set of federal regulations instead of the growing number of state and local restrictions, the contractor dilemma as well as the embarrassing incidents involving the foreign auto executives could have been avoided. However, in today’s political environment where easy political points are scored with anything that looks or sounds or smells like tougher immigration control, that may be too unrealistic a wish. That said, we do have to give credit to those Alabamian legislators who had the foresight to change the contractor and subcontractor requirements and not dig in their heels. The bill still has to make it through the entire House of Representatives and the Senate before the governor can sign it into law. We just hope there are enough legislators who understand that hurting employers and job creators is not the best policy in these tough economic times.

Alabama Lawmakers Move Closer to Amending Tough Immigration Measures Against Employers

Thu, 19 Apr 2012 14:46:03 GMT

More Clarity from Newly Proposed Form I-9: A welcomed development as questions about enforcement policy loom

Mon, 02 Apr 2012 15:24:58 GMT

Most of us can probably agree that greater clarity on government regulations is a welcome development. So when the U.S. Citizenship and Immigration Services (USCIS) proposed on March 27, 2012 a new, more explicit and user-friendly version of the Form I-9, we were pleased. After all, simplifying the complex task of verifying employment eligibility throughout the workforce is good for everyone.

Here, then, are some of the notable changes being suggested:

·       The form is expanded to two full pages instead of the current one-page format;
·       Section 1 is expanded so that it is clearer to the employee exactly what information is needed to demonstrate employment eligibility based on a nonimmigrant visa;
·       The acceptable documents on Lists A (identity and work authorization), B (identity only) and C (work authorization only) would remain the same; However the explanation for documents A5 (the I 94 and foreign passport combination) and C1 (Social Security card) are explained in greater detail so employers understand better what to do under certain common scenarios;
·       The proposed instruction for section 2 makes it very clear that employers must fill in every blank, and that attaching copies of the documents does not obviate the need to complete the form thoroughly; and
·       The proposed new version would have an extensive discussion on the "receipt rule," which does not exist in the current version.

These proposals provide clear, concise, and transparent instructions for filling out Form I-9. Excellent! What is not clear—and ultimately more consequential for workers and employers alike—is how the USCIS’s sister agency, Immigration and Customs Enforcement (ICE), will enforce the law based on the new form. Ever since June of 1987 when the first version of the Form I-9 was introduced, employers have had to attest to having verified the employment eligibility of every newly hired employee. The form itself has undergone numerous revisions since 1987, and the level of enforcement and scrutiny have varied greatly as well over the years. At one point during the 1990s, immigration authorities focused a lot of their attention on the technicalities (paperwork) of the form. The level of enforcement dropped off toward the end of the 90s and into the early part of the new millennium. After the tragedy of 9/11, immigration enforcement focused almost exclusively on national security issues, and few resources were diverted for form I-9 compliance purposes. Then, in the final years of the Bush Administration, enforcement picked up again, but more in the form of prosecuting the legal workers and perpetrators of identity fraud.

That, as we know, changed when Department of Homeland Security Secretary Janet Napolitano announced a shift in enforcement strategy from unauthorized workers to employers who hire them in 2009. Ever since, the number of Form I-9 audits and enforcement actions has skyrocketed. We are also seeing an increase in penalties against employers for failure to fill out the form correctly--regardless of whether unlawful employment actually exists.

Consequently, should the proposed changes be adopted, it will be very important to note how literally ICE interprets the form’s instructions. For example, the revised instruction for section 1 is very precise about how to indicate a date of birth – “mm/dd/yy.” If an employee chooses to write out the date in longhand, would some ICE auditors take a rigid view and determine that to be a violation? It may sound ridiculous but we have seen penalties assessed for deviations that are equally innocuous. Also, the same instruction states that if an employee does not have a maiden name, he or she should put "N/A" in the space provided. Would ICE auditors consider it an omission and therefore impose a penalty if an unmarried employee chooses to leave blank that box? We certainly hope not, and we give the agency’s leadership much more credit than that! But our inconsistent experiences across the country tell us that these are not far-fetched hypotheticals either.

In sum, we commend Homeland Security officials for its efforts to improve the form. We only hope that, in the spirit of making the form more user friendly and creating a system that focuses on substance more than procedure, that we will see sensible enforcement consistently across the country.

Lesson Learned from DHS OIG Report - Government Should Stand by Its Mistakes

Wed, 29 Feb 2012 13:29:17 GMT

A recent hearing by the House Immigration Subcommittee was truly disturbing. In case you missed it, the subject of the hearing held on Feb. 15 was a troublesome report released in January by the Homeland Security Department’s Office of Inspector General (OIG). In essence, the OIG determined that the U.S. Citizenship and Immigration Services (USCIS) management is pressuring its adjudicators into approving too many cases. Moreover, the OIG suggested that the agency is allowing members of the public to affect the outcomes of its cases.

To anyone who follows immigration matters, these findings are indeed disturbing. They suggest a threat to our national security as well as a serious breach in the integrity of our immigration system. But what is perhaps most worrisome is that the OIG’s findings are belied by all available empirical data. In fact, the report runs counter to the experiences thousands of U.S. employers are encountering every day.

Given these discrepancies, the congressional hearing was an attempt to get to the bottom of the OIG’s findings. Amazingly, witness after witness called to testify in defense of the OIG’s report could not justify its conclusions, including the inspector general himself. He testified that “no conspicuous fraud was found” in immigration benefits adjudications. The president of the USCIS officers’ union unequivocally stated that there is “no culture of getting to yes” in the agency and that any “pressure” from the outside on individual matters may only result in some cases being reexamined due to new evidence.

As for the conclusion that more cases are being approved due to management intervention, the data suggests otherwise. The recent release of of official statistics on nonimmigrant petition denials indicate that there is actually an increasing “culture of no” among adjudicators, with H-1B and L-1 petition denial rates skyrocketing in the last several years. According to fiscal year 2011 statistics, 63% of all L-1B visa petitions and 26% of H-1B visa petitions underwent additional scrutiny and delays, compared to 2% and 4% respectively in 2004. The report also appears to be based on the responses from a small fraction of the adjudicators’ corps who resent being overruled when their decisions were deemed improper for whatever reason. The poor data collection that went into this report led one member of the subcommittee to dub the report “amateurish.”

Finally, it was suggested both in the OIG report and in comments at the hearing that allowing private immigration lawyers access to agency officials is somehow improper. This may be the most disturbing comment of all. One subcommittee member asked whether this practice is akin to allowing criminal defense lawyers access to the prosecutor’s office. Again, would anyone suggest (with a straight face that is) the defense lawyers are forbidden to submit exculpatory evidence? Do we want to live in a society where the government can decide to condemn an individual or entity based on incomplete or erroneous information, and not give the accused the opportunity to at least make sure the government got the facts right?

The issues raised by the OIG and subcommittee are serious and should be treated that way. Indeed, people are entitled to their own points of view and should raise red flags when appropriate. What they cannot do is make up their own set of facts. The OIG report is simply not supported by the facts. In addition, we must strive to ensure that adjudicators handle their caseloads in the most humane, unbiased, and honest manner possible. We cannot accept a system that would deny petitioners--or their lawyers--meaningful contact with the government. We need a system that is fair to everyone.

Kudos to Washington: Global Entry Is Working

Tue, 21 Feb 2012 15:20:31 GMT

It is always worth taking a moment to celebrate when government gets something right. The Department of Homeland Security just did when it announced recently that its pilot Global Entry program will not only become permanent by March 7, 2012 but also expanded to include children under the age of 14. Through Global Entry, Washington has finally achieved its long-sought-after goal of providing expedited immigration and customs clearance to pre-approved, low-risk travelers coming into the U.S.

Here’s how the program works: First would-be participants submit an application along with a $100 fee. U.S. Customs and Border Protection (CBP) reviews the application and conducts an in-person interview with the applicant at a Global Entry airport. At the interview, the applicant is questioned, fingerprinted, and photographed. Then, once approved for a period of five years, the participant need only use a kiosk to complete immigration and customs clearance when coming into the U.S. No more long lines. No more inspections by CBP officers.

Sounds pretty good, right? We thought so, too. That said, we did recall the previous, not-so-successful INS Passenger Accelerated Service System (INSPASS) at several major airports, launched in 1993. The INSPASS system used the hand geometry biometric for the verification of travelers but it also required travelers to obtain INSPASS cards containing their biometric data. The program, discontinued in 2002, never really fulfilled its promise as it was only available in seven airports with a total of 15 kiosks. In the words of one industry expert, the travelers just paid to move from one line to stand in another. Other subsequent programs, such as NEXUS for Canadian travelers and SENTRI for Mexican land travelers, were too limited in scope to have any significant impact in relieving congestion across the country.

So forgive those of us who have worked in the immigration field for years for being a bit skeptical about Global Entry when it was first rolled out last summer. Nonetheless, it was important to keep an open mind as well as experience the program first-hand so we could better advise our clients about its efficacy. Several of us at the firm applied for Global Entry and tested it out during our recent travels.

To our pleasant surprise, it worked. In most cases, there were more kiosks than travelers seeking admission, so we did not have to wait at all. In another instance, when all of the kiosks were not working, a colleague was able to show his Global Entry sticker in his passport and was then escorted ahead of the line without terrible delays.

Global Entry looks like the real deal, performing as promised. It’s not perfect, of course, in part because it is only open to U.S. citizens, lawful permanent residents, and Canadian, Mexican, and Dutch nationals. In addition, Global Entry is operational at just 20 international airports in the United States, as well as pre-flight inspection stations at selected airports in Canada. This isn’t enough. The scope and availability of the program needs to be significantly broadened to include citizens from far more countries traveling to the U.S. to truly alleviate congestion and turn what has been a frustrating exercise for travelers into an easy, even pleasurable one. In addition, the approval process itself needs to be improved. We understand why persons with past immigration or customs infractions are not eligible for Global Entry benefits. But some of these so-called infractions were due to misunderstandings, either by the traveler or the inspector. They were not intentional violations of the law. In such instances, we urge CBP to exercise more discretion and not reject these applicants based on technicalities of a flawed process.

President Obama is right in touting this program, and in issuing an executive order to expedite visa processing at consular posts, particularly those in Brazil, China and India. After all, if we want to welcome visitors to the United States, a cluttered and infuriating customs process is not the first impression we want to give. So, at least for the moment, we will celebrate a success.

Kudos to the Homeland Security officials running the Global Entry program!

Bringing Document Authentication into the 21st Century

Wed, 11 Jan 2012 16:41:37 GMT

On Wednesday, January 4th, the U.S. Customs and Border Protection (CBP) issued a rather unusual press release. Essentially the CBP labeled reports in a Canadian newspaper that someone had gotten into the United States by presenting only a digital image of his passport as “categorically false.” Furthermore, the agency took the opportunity to reiterate that the Western Hemisphere Travel Initiative (WHTI) has very specific documentary requirements for admission into the United States, even for U.S. citizens. These documents include a U.S. passport or passport card, a Trusted Traveler card under one of several CBP programs that prescreen frequent travelers, or a driver’s license/I.D. that contains enhanced security features.

Unusual, right? Even more unusual when we learned that the alleged incident was recounted in detail by the Winnipeg Free Press. The traveler who purportedly got through using an image of his passport on an iPad provided a litany of details about his experience. According to the newspaper, the traveler, a Canadian, says the CBP officer was initially annoyed with the request to consider an electronic image as valid documentation. Later, however, he says the officer was persuaded and gladly admitted him to the U.S., even wishing him “happy holidays.”

We probably will never know whether the Canadian traveler fabricated the whole story (and, if so, for what possible motive), or if the CBP’s press release is just an attempt to downplay an embarrassing incident that clearly raises national security concerns. In either case, the immediate lesson here is that travelers going to the United States through a land border should possess a WHTI-compliant document, and not rely on images from iPad, iPhone, Photostat, Xerox, mimeograph, carbon copy, charcoal sketch, or anything other than the original. More broadly, however, we worry that stories like these will have a chilling effect on the government’s initiatives to develop and implement technologies that can make our borders (and worksites) more secure and our admissions processes more efficient. These improvements include everything from biometric and video-conferencing technology to authenticating identity remotely.

Clearly there is plenty of work in this area still to be done. As it is now, mistakes are routinely made. We have seen international business executives, young children, grandmothers and even a U.S. senator subjected to additional scrutiny at airports because of the inflexibility of our screening policies. We do not suggest that CBP should go as far as allowing electronic images of document as substitutes for the original (not unless and until technology can be fraud-proof). However, we also don’t want an environment of form over substance, of equating inconvenience with security.

We respectfully urge Homeland Security and CBP officials to not let this incident, real or imagined, become yet another reason to discourage common sense and sound judgment in determining the admissibility of millions of legitimate travelers at our air, sea and land ports of entry.

State Enforcement of Immigration Laws - Keeping American Streets Safe by Putting Dangerous Auto Executives Behind Bars!

Tue, 13 Dec 2011 16:24:18 GMT

Lately, the issue of immigration enforcement is getting a lot of much-needed attention, though not necessarily the kind hardliners might like. In Alabama, for instance, in the span of less than two weeks, officers arrested not one but two managers of foreign automakers doing business in the state. These moves were ostensibly justified by the “Alabama Taxpayer and Citizen Protection Act,” also known as the "Beason-Hammon Act." This law, enacted in June, is widely regarded as the most draconian of all state immigration laws to date.

The incidents involved employees from Mercedes Benz and Honda—both of which have made substantial investments in the state and have created literally thousands of jobs. The first incident, on Nov. 16, involved a German manager of Mercedes-Benz while the second, on Nov. 28, involved a Honda manager from Japan. Both men were arrested and charged with failure to produce what the police deemed to be valid driver’s licenses. To be fair, the officers were just following an interpretation of the law put out in a presentation by the Alabama Office of Prosecution Services. It reads as follows: "At the present time there are no legally issued International Drivers License (sic.). Such documents can be found for sale in a variety of places but have no legal authority and are not recognized by U.S. Immigration Officials as proof of alien registration."

Come on! Even Alabama driver's licenses are not recognized by federal officials as proof of legal presence. Furthermore, the arresting officers (nor the Office of Prosecution Services) apparently did not know that Alabama law actually allows the use of a license issued by a foreign country, along with an international driving permit, for a period of one year after arriving in Alabama!

The media—and competing states—have jumped on the state’s misstep. Missouri, for instance, is using the event to entice international corporations to move business from Alabama to its state. An editorial that appeared in the state’s papers on Nov. 22 played on the state’s nickname to make its point: “We are the Show-Me State, not the show me your papers’ state.”

Clearly Alabama officials know they have goofed. Alabama Governor Robert Bentley, who signed the immigration-enforcement law, announced on Dec. 9 that “. . . some parts of the law need revision so that Alabama will have a more effective and more easily enforced law . . . ” Governor Bentley also said in an earlier statement that "[w]e are not anti-foreign companies. We are very pro-foreign companies."

The Governor’s reaction, as well as Missouri’s, is understandable. After all, Honda has invested nearly $1.5 billion in his state and has a labor force of over 4,000 employees. In fact, just 12 days before the Honda manager’s arrest, the company announced that it would boost its investment in Alabama by another $84 million and add another 100 employees. For its part, Mercedes-Benz announced last July that it would invest another $2 billion in the state to upgrade manufacturing in preparation for the launch of several redesigned models in 2014. It also employs about 2,800 Alabamans. Collectively, the auto industry over the past decade has invested more than $7 billion and created more than 35,000 jobs in Alabama.

Alabama could have easily avoided the international embarrassment and media frenzy by ensuring that its officers are properly trained. Immigration law is highly nuanced and complex, making it difficult for individual states to regulate properly. This is why we have argued repeatedly that federal law—not a myriad of state and local laws—should govern how we deal with non-Americans living and working in this country. It’s simply too difficult to manage conflicting regulations across the country, particularly for employers who do business in multiple jurisdictions.

Now that the Supreme Court on Dec. 12 agreed to review Arizona’s controversial anti-immigration law, we will soon know whether the trend toward more state regulation will be allowed to continue. Even if the high court disagrees with us, it will be imperative to ensure that common sense plays a greater role in not just the passage of these laws—but, more importantly, how they are enforced.

Bringing Discretion Back Into ICE Enforcement?

Tue, 22 Nov 2011 15:33:14 GMT

These days, it may seem that common sense is tougher to find in Washington than blue crabs in January. But in at least one agency, common sense seems to be finding its way into its policy making. On Nov. 17, the chief lawyer for U.S. Immigration and Customs Enforcement issued a new written directive calling on prosecutors to exercise more restraint, and yes, common sense, when it comes to deciding whether to deport individuals in the U.S. illegally. His announcement backs up an earlier statement by Homeland Security Secretary Janet Napolitano before the House Judiciary Committee that she and the Attorney General have formed working groups to focus on prioritizing some 300,000 deportation cases already pending.

Exercising discretion is something that criminal prosecutors do all the time. But in immigration, it remains a novel concept. Look no further than the record number of 400,000 deportations in fiscal year 2011, many of which involved non-criminal, nonthreatening immigrants. The latest directives, though, may change that. The recent memoranda direct prosecutors to focus their enforcement efforts first on criminals, fraud perpetrators, and terrorists. The more benign cases of family members of servicemen, children, the elderly, and pregnant mothers are to be treated like the less urgent matters that they are .

Immigration rights groups generally applaud the government’s new tack. Of course, an obvious question that the ICE’s memos do not answer is what becomes of the beneficiaries of favorable discretion? A criminal defendant, with charges dropped or reduced, may integrate back into society and continue on with life. An undocumented immigrant remains an undocumented immigrant--even without the threat of removal. Plus, discretion is a subjective concept. Some groups have already complained that field agents continue to enforce the law in a very restrictive manner, contrary to the spirit of the ICE directive. Other groups have accused the ICE and the Administration of too much leniency.

Still, the concepts of common sense and discretion will be especially helpful when it comes to worksite enforcement against employers. This is an area where government auditors have had almost no flexibility or discretionary authority because their actions have been ruled by a binding civil penalty matrix since 2009. Only five factors – business size (favoring small business), good faith, seriousness of offense, presence of unauthorized workers, and compliance history -- could be considered when deciding whether to mitigate or enhance a penalty -- and even then only by 5% one way or another. In other words, for an I-9 violation, the most an ICE agent could do was to increase or decrease the baseline fine determined by the number of errors by 25%. Moreover, we have seen less flexibility within ICE for paperwork errors that were once either forgiven or dismissed with a warning.

We can accept that enhancing worksite enforcement is both good politics and good policy. We even go as far as acknowledging that the highly publicized initiatives over the past two or so years, the latest of which was reported in the Wall Street Journal, has raised an unprecedented level of awareness to take compliance seriously. It may even have deterred some unscrupulous employers from hiring unauthorized workers. However, treating paperwork errors as, in essence, a strict liability has created an environment of form over substance in immigration enforcement, which seems to take us further away from the goal of preventing illegal employment.

We will have to wait and see how all this new guidance plays out—and whether it indeed proves to be good for the country. For now, though, the business community should be encouraged to see that the government is recognizing the value of discretion—and acknowledges that it has been lacking from immigration enforcement.