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Carl Shusterman's Immigration Update


  1. California Snake Oil
    Here in my home state, the budget is over $25 billion in the red. One group is trying to find someone to blame, but not the Governor nor the legislature who got us into this mess. It's far easier to pick on a group with little or no political power.

    This group consists of "undocumented workers" or "illegal aliens", take your pick, or to be more precise, their U.S. citizen children.

    The plan is to put a proposition on the California ballot which, if passed, would cut off welfare payments to these children. Will this solve the budget crisis?* Hardly, since the cuts would be less than 4% of the budget deficit. Would such a move be challenged in court? Certainly. There is no getting around the fact that under the 14th amendment to the Constitution, these children are U.S. citizens and cannot have their legal rights abridged, no matter what the status of their parents. Will it make a lot of voters enraged against "Mexicans" and "wetbacks"? But of course...

    History tends to repeat itself, and this is no exception. Back in 1994, a bunch of zealots put anti-immigrant Proposition 187 on the ballot. The proposition would have cut health, welfare and educational benefits for illegals and, in some cases, for their U.S. citizen children. Sound familiar?

    I wrote an op-ed in the Los Angeles Times about Proposition 187, warning that the ballot initiative was clearly unconstitutional. The proponents of 187 dubbed it "SOS", short for "Save Our State". My article was entitled "Snake Oil Salesmen".

    Proposition 187 was passed by an overwhelming majority of voters. Republican Governor Pete Wilson endorsed the proposition and went on to win the election.

    Did Proposition 187 accomplish its stated goals? Hardly. The Courts declared the proposition unconstitutional. What's more, the campaign jolted the state's large Hispanic population into action. Millions of immigrants naturalized as American citizens and registered to vote. The Republican presence in the California State Legislature shrunk to about one-third.

    Hopefully, the latest attempt to demonize immigrants from Mexico and their U.S. citizen children will fail at the ballot box. In any case, it will be a colossal waste of time and money since U.S. citizens cannot legally be deprived of benefits due to the immigration status of their parents.

    One can only hope that the comprehensive immigration reform bill supported by the Obama Administration will pass Congress and be signed into law this fall. Let's get every worker in this country on the tax rolls, and handle this matter in an intelligent fashion.

    We link to the latest legislative proposals from our "Immigration Legislation" page at

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 05:10 PM by CShusterman

  2. Senate Bill Includes Immigration Measures
    On July 9, the Senate, by a vote of 84 to 6, passed a DHS funding bill which includes a variety of immigration enforcement and benefits measures. The measure now goes to a House-Senate Conference Committee which must reconcile this bill with a funding measure previously passed by the House of Representatives which contains none of the immigration amendments added by the Senate.


    The Senate adopted an amendment offered by Senator Jim DeMint (R-SC) to provide that the DHS must complete 700 miles of actual fencing along the U.S.- Mexican border by the end of fiscal year 2010. Despite being funded for several years, the DHS has only managed to
    erect a fraction of this amount.

    The bill also includes an amendment by Senator David Vitter (R-LA) which is aimed at preventing the DHS from rescinding the "No-Match" rule. Secretary Napolitano had announced her intention to do so earlier this week. This rule would require employers to fire workers who are unable to resolve discrepancies in their Social Security Records.

    The bill also includes an amendment by Senator Jeff Sessions (R-AL) which would effectively make the "E-Verify" program permanent for federal contractors. Not only would "E-Verify" be used to check the immigration status of new hirees, it would also apply to existing employees who are assigned to work under a federal contract. Before the Sessions' amendment passed, 10 Democrats joined most of the Republican Senators in voting for a procedural motion. The House bill would extend the "E-Verify" program, but only for a period two years.

    However, both the mandatory "E-Verify" program for federal contractors and the implementation of the "No-Match" rule have both been enjoined by a Federal Court order since 2007. Therefore, it is not clear that either provision of the Senate bill would become effective even if they remain in the final bill after a House-Senate Conference Committee meeting, and are signed into law.

    The Senate bill also contains an amendment by Senator Charles Grassley (R-IO) which allows employers, for the first time, to use the "E-Verify" program to screen existing employees as well as new hires.

    DHS spokesman Matt Chandler criticized these amendments. He stated that they "are designed to prevent real progress on immigration enforcement and are a reflection of the old administration's strategy: all show, no substance."


    The Senate also adopted two amendments offered by Senator Orin Hatch (R-UT). The first would eliminate the "widow's penalty". This would allow foreign-born widows and orphans to remain eligible for permanent residence even when the U.S. citizen spouse/parent dies before they achieve such status. The second would extend the "Conrad 30" J waiver program for physicians and the religious worker program for non-ministers until September 30, 2012. Currently, both programs are due to expire on September 30, 2009.

    Finally, the Senate bill includes an amendment by Senator Patrick Leahy (D-VT) which would make the EB-5 Regional Center Investor program permanent. Currently, the program is due to expire on September 30, 2009.


    What should we make of the Senate's sudden interest in adding far-reaching immigration amendments to an appropriations bill?

    Joanne Lin, ACLU Legislative Counsel, states, with regard to the "No-Match" rule, that "while the Senate might think it has taken a step to fix illegal immigration, it has actually set into motion a rule that will jeopardize the jobs of tens of thousands of U.S. citizens who could be unjustly fired under the rule due to SSA database errors."

    Mary Giovagnoli of the Immigration Policy Center is not impressed by many of the Senate's actions. She states that "enforcement-only amendments win on the Senate floor -- bad policy, but great political theater. Unfortunately, political theater is often hard for politicians to resist when they are dealing with complex issues that defy simple solutions."

    We link to her analysis of the enforcement provisions of the Senate bill and to the ACLU's press release from our "Media" page at

    Since Senator Charles Schumer (D-NY) has promised to introduce a comprehensive immigration reform bill by Labor Day, we hope that the most controversial immigration amendments to the DHS appropriations bill will be stricken by the House-Senate Conference Committee. Perhaps it would be better if major changes in our immigration laws were made after legislative hearings and an opportunity for Members of Congress to examine the arguments for and against each measure.

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    Updated 12-02-2013 at 05:17 PM by CShusterman

  3. I-9 Audits: 7 Rules for Employers Now that the Obama Administration has decided to zero in on employers with massive numbers of I-9 audits (652 in one day!), let me provide you with a few tips which I've gleaned from assisting employers survive such audits over the past 20 years:

    Tip #1 - Make sure that each new hire completes Section 1 of the form on the first day of employment. If the employee's information is incomplete, it is you who pays the fine, so proofread this section very carefully.

    Tip #2 - Complete Section 2 of the form by the employee's third day of employment. Show the employee the back of the form, and have him/her show you either one List A document (ID and Employment Authorization) or one List B document (ID) and one List C (Employment Authorization) document. Do not request specific documents or additional documents.

    Tip #3 - Keep your I-9 forms separate from employee personnel files. Otherwise, you will have a lot of sorting to do if you receive a Notice of Inspection. The forms must be retained for three years after the employee is hired or one year after his employment ceases, whichever is later. Keep the forms of active employees separate from those of former employees. Purge the latter on a regular basis.

    Tip #4 - Create a tickler system for employees who check the box in Section 1 which indicates that they possess only temporary employment authorization. Send them notices well in advance of the termination of their work permits advising them of the need to update their I-9 forms. Remember that certain types of work status are extended simply by submitting an application for an extension to the USCIS. Never update the forms of U.S. citzens or permanent residents, even though "green cards" all have expiration dates.

    Tip #5 - Protect yourself from violating the "antidiscrimination" provisions of the law by treating employees who may look or sound "foreign" to you the same as employees who are U.S. citizens.

    Tip #6 - Carefully read USCIS' "Handbook for Employers" which we link to from our "Employers' Immigration Guide" at

    Tip #7
    - Have an attorney who has expertise in I-9 laws and procedures to review all of your I-9 forms at least once each year. The amount that you spend will be a tiny fraction of what you might be fined by the government if you are audited.

    Subscribe to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 05:51 PM by CShusterman

  4. Employers Caught Up In a Catch-22 The U.S. Immigration and Customs Enforcement (ICE) announced today that it served Notices of Inspection upon 652 businesses around the country. Compare this with the 508 businesses which received Notices of Inspection in fiscal year 2008.

    An ICE spokesman told the press: "Part of the strategy is to show businesses that we mean business."

    The new Obama policy substituting audits for raids, and civil penalties on employers rather than criminal penalties on workers is a step in the right direction. It may even set the stage for comprehensive immigration reform by showing that the administration is serious about immigration enforcement.

    We link to the ICE press release and the news story from our "Employers' Immigration Guide" at

    Notices of Inspection are served on employers to compel them to surrender their I-9 forms to the government. The I-9 form verifies the identity and the employment authorization of each employee hired by the company.

    However, employers do not have the authority to question the legitimacy of the documents that are presented to them unless the documents are obviously false. An employer who attempts to do more risks great sums of money for violating the document abuse and/or anti-discrimination laws. Ask Jose Sanchez for more or different documents than Joe Smith, and you are asking for trouble, big trouble. See our article "INS vs. INC." at

    The truth is that most "undocumented" workers are ready, willing and able to produce the required documents when an employer presents them with an I-9 form.

    So, in the next few weeks, when ICE inspects the I-9 forms of many thousands of employees who work for these 652 companies, the agency will learn (No big surprise.) that thousands of these documents are either false or belong to others.

    The workers will lose their jobs, but if history is any guide, they will simply pick up and start looking for new jobs.

    The employers can not be fined unless their I-9s were done improperly or not at all. In most cases, they will receive fines for being sloppy, not for being "unscrupulous". Of course, if an employer has actual knowledge that an employee is illegally present in the U.S., he could face criminal penalties, but rarely does ICE have enough evidence to press criminal charges.

    Earlier today, I was interviewed regarding this subject by a newspaper reporter. As a former INS prosecutor, I have represented quite a few companies facing I-9 audits.

    I spoke with one of my former clients today. His company underwent an I-9 audit when they applied for labor certification for three undocumented workers. I remember meeting with the INS investigator and handing him a pile of I-9 forms. The INS could have subjected the employer to many thousands of dollars in fines. Instead, we agreed to enroll the employer in what is now called the "E-Verify" program, and the government agreed to waive all fines.

    However, the employer lost many of his most valuable employees, and it took years for the business to recover. How about the employees? They ended up working for his competitors.

    Who came out ahead in the end? No one as far as I'm concerned.

    Our broken immigration system will not be fixed by penalizing employers who are trying to abide by the law, and forcing many of their workers to find new jobs. If there was ever a time to amend our laws to conform with the laws of the free market, it is now.

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    Updated 12-02-2013 at 06:34 PM by CShusterman

  5. President Obama and Immigration Reform On June 25, President Obama met with a bipartisan group of 30 key legislators beginning a dialogue that he hopes will lead to comprehensive immigration reform in 2009 or early in 2010.

    Among the topics discussed were border security, family reunification and reform of the outdated quota system.

    Following the meeting, the President stated, "but what I'm encouraged by is that after all the overheated rhetoric and the occasional demagoguery on all sides around this issue, we've got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now."

    With regard to the USCIS, the President stated:

    "Today I'm pleased to announce a new collaboration between my Chief Information Officer, my Chief Performance Officer, my Chief Technologies Officer and the U.S. Citizenship and Immigration Services Office to make the agency much more efficient, much more transparent, much more user-friendly than it has been in the past.

    In the next 90 days, USCIS will launch a vastly improved Web site that will, for the first time ever, allow applicants to get updates on their status of their applications via e-mail and text message and online. And anybody who's dealt with families who are trying to deal with -- navigate the immigration system, this is going to save them huge amounts of time standing in line, waiting around, making phone calls, being put on hold. It's an example of some things that we can do administratively even as we're working through difficult issues surrounding comprehensive immigration.

    And the idea is very simple here: We're going to leverage cutting-edge technology to reduce the unnecessary paperwork, backlogs, and the lack of transparency that's caused so many people so much heartache."

    President Obama also announced that DHS Secretary Janet Napolitano will chair a working group composed of Representatives and Senators to hash out some of thorniest issues. Among these issues are how to legalize 12 million undocumented persons, border security, cracking down on unscrupulous employers, creation of a "guest worker" program and whether a governmental commission should be established to decide the future immigration of temporary and permanent workers based on labor market needs.

    Unions are opposed to a guest worker program and in favor of a commission while business groups would like to see a guest worker program but are opposed to a governmental commission.

    Senator McCain (R-AZ), a key player stated that "we don't need a commission" and called on the President to stand up to labor unions and support a guest worker program.

    Several persons close to President Obama including his Press Secretary and his Chief of Staff have asserted that there are not enough votes in Congress to pass comprehensive immigration reform. And at least one strong proponent of immigration reform, Rep. Luis Gutierrez (D-IL), agrees. "If we had the votes, we wouldn't be calling you", Gutierrez told the Wall Street Journal.

    However, in the Senate, both the Majority Leader Harry Reid (D-NV) and Immigration Subcommittee Chairman Charles Schumer (D-NY) believe that there are enough votes in their chamber to pass the legislation. The Senate passed the bipartisan Kennedy-McCain immigration bill in 2006. However, the House did not take up the measure.

    "We've got one more chance to do this," said Senator Lindsey Graham (R-SC). "If we fail this time around, no politician is going to take this up in a generation."

    President Obama stated, "It's going to require some heavy lifting."

    We link to a video of President Obama's remarks at the conclusion of the June 25th meeting as well as to the transcript of his remarks from our "Immigration Legislation" page at

    to our free, monthly e-mail newsletter, and follow us on Facebook, Twitter, Google+ and YouTube.

    Updated 12-02-2013 at 05:51 PM by CShusterman

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