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  1. The Secure Communities Report

    by , 09-19-2011 at 12:37 AM (Greg Siskind on Immigration Law and Policy)
    Last week I blogged that the task force appointed by DHS to report on Secure Communities issued a highly critical report of the controversial program. Here is the document for your review.

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  2. What Employers Need to Know to Improve their Immigration Compliance Systems

    The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) of the Department of Justice protects the rights of individuals from employment discrimination based upon citizenship or immigration status and national origin, unfair documentary practices when verifying the employment eligibility of employees, and retaliation. OSC enforces the anti-discriminatory provisions of the Immigration and Nationality Act (INA). Individuals discriminated against may file charges with OSC and be awarded back pay and reinstatement, among other remedies.
    The INA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees' work eligibility as specified on the I-9 form. The employees must present documentation to their employers to establish both identity and employment eligibility. The I-9 form must be completed for every employee, regardless of national origin, and whether or not the employee is a U.S. citizen.
    An employer's failure to verify the identity and employment eligibility of new employees by completing the I-9 Form violates federal immigration law and may lead to severe civil and criminal penalties.
    However, worksite enforcement audits are not the only problems that employers should be concerned about. The employees, including work authorized individuals and undocumented aliens, may also bring private actions to recover damages for violation of anti-discrimination provisions of the INA and may file charges with the agencies enforcing these laws. It is therefore critical for all employers to familiarize themselves with the proper immigration compliance procedures.
    Ensuring compliance with the proper employment eligibility verification procedures can be rather complex as it requires understanding of not only the immigration laws but also anti-discriminatory provisions and the employment law.
    Even though Human Resources personnel are not expected to be experts in immigration law, the companies are required to follow proper immigration compliance procedures. If you have any concerns regarding compliance measures, if you do not understand your obligations related to completing and maintaining I-9 forms, or if your company has a worksite enforcement audit, seek competent legal assistance.
    Employer-Prohibited Conduct under the INA:
    o Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with four or more employees, subject to certain exceptions. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals.
    o National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign."
    o Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not, on the basis of citizenship status or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents or specify certain documents over others.
    o Retaliation. Individuals who file charges with OSC, who cooperate with an OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship status or national origin, or who otherwise assert their rights under the INA's anti-discrimination provision are protected from retaliation.
    What the Employers Should Do to Improve their Immigration Compliance System
    Below are few examples of immigration compliance measures that are helpful for employers to implement.
    o Avoid using "U.S. citizen-only" or "green card-only" language in job postings. Such hiring policy is discriminatory except when required by law, regulation, or by government contract.
    o Do not request specific documents from the employee. Employers cannot prefer one document over others for purposes of completing the I-9 form. For example, you cannot ask for a green card from a legal permanent resident, as the employee is permitted to present any documents from the list of acceptable documents, such as e.g. state driver's license and unrestricted social security card.
    o Avoid selectively verifying employment eligibility of certain employees based on their national origin or citizenship status.
    o In order to avoid any appearance of discrimination, verify work eligibility after you have decided to hire an individual and allow your employee three days to provide the documents.
    o Do not reverify lawful permanent residents who produce a green card with a future expiration date.
    o Do not reverify identity documents.
    o During reverification, do not insist on the document presented initially by the employee. The employee may choose to present any of the acceptable documents to verify continued employment eligibility.
    o Do not require employees to provide additional evidence of employment eligibility or more documents than required as this constitutes document abuse and is prohibited under the INA.
    o Avoid firing the employees immediately after receiving SSA "no match" letters assuming that the employees are not work-authorized. Discrepancies in social security records may occur due to various valid reasons, such as name change, clerical errors, etc.
    o Avoid terminating or suspending employees assuming that they are illegal without providing them with notice and a reasonable opportunity to present valid employment eligibility documents.

    Special rules regarding asylees
    The individual who has been granted asylum does not need to receive Employment authorization document issued by the DHS in order to be eligible to work. The asylees are authorized to work incident to their status whether or not they have DHS-issued work authorization documents. For purposes of I-9 Forms, that means that asylees may present identity document and their I-94 indicating the person has been granted asylum. Do not reverify employment eligibility of asylees as they are authorized to work in the U.S. indefinitely and avoid creating unnecessary hurdles for such individuals.
    Employers should familiarize themselves with the Handbook for Employers for the purposes of Form I-9 available on USCIS website. If you have any questions regarding your obligations, consult with a legal counsel to ensure compliance with the applicable laws and regulations. The team of attorneys from our office will be happy to provide assistance with an I-9 audit or with setting up an effective I-9 compliance system.

    by , 09-16-2011 at 07:47 AM (The H-1B Visa Blog by Siliato and Malyk)
    Perhaps this is old news, but the U.S. appears to be losing its edge in attracting and retaining not only the best and the brightest, but even those who possess a minimum of an undergraduate degree.  According to a recent study by the Organization for Economic Cooperation and Development ("OECD") at present, 25% of the 255 million people worldwide with a bachelor's degree or higher currently reside in the United States. But that share is expected to shrink in the coming years, as developing countries such as Korea and China push more and more of their citizens into college. China already accounts for 12% of the world's college-educated working population and, among young workers aged 25-35, China accounts for 18% of the college-educated. 
    For reasons unclear to the authors of this blog (other than that the United States charges more in tuition than any other country in the survey), the United States is showing no growth in the share of young people who go to college compared to a generation ago.  According to the OECD study's author, the United States is quite alone in that young people entering the labor market are not better educated than people leaving the labor market. Indeed, as the OECD writes, "the expansion of tertiary education in many countries has narrowed the advantage of the United States both in overall levels of attainment and in the sheer number of individuals with tertiary education."
    While a meaningful reduction in U.S. college tuition across the board is, of course, not in the cards, there are other avenues available to attract and retain the college educated.  A step in the right direction would be to eliminate altogether the H-1B cap that has been arbitrarily set by Congress.  The U.S. caps the H-1B "specialty occupation" visa at 85,000 per year. As of September 9th, USCIS advised that it has received 32,200 regular cap cases and 16,700 against the U.S. advanced degree cap. Based on current projections (with usage about the same as that of the last fiscal year), this year's limit is likely to be exhausted in January 2012--which means that, after such date, employers will be unable to hire new H-1B workers who are subject to the cap until October 1, 2012.
    Another option would be to implement a plan proposed by Mitt Romney--one in which foreign nationals with a foreign master's degree in science, engineering or math (rather than an advanced U.S. degree) would not only be exempt from the H-1B cap, but also be eligible for a green card.  The latter green card plan is one that has been proposed previously by lawmakers on both sides of the aisle without success.
    In today's economic environment, no doubt it may seem counterintuitive to some to implement any plan that enables more foreign nationals to work either temporarily or permanently in the U.S.  A futuristic view, however, of the continued shrinking of our college-educated population certainly does not seem to be a good alternative.
    Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP
  4. Bloggings: The Republican war on minority voting rights parallels the Republican war on minority immigrants. By Roger Algase

    The Washington Post, in a September 15 article, details the way in which Republican legislatures in Florida and a number of other states are attempting to roll back voting rights which had led to the large turnout of minority and less affluent voters that helped to elect Barack Obama as president in 2008. These Republican measures include restricting early voting, reversing laws that had made it easier for ex-felons to vote, and, most insidious of all, requiring photo ID's in order to vote. The ID requirement is especially burdensome for elderly and lower income voters, including many minorities.
    The Republican excuse is that these measures, which have rightly been compared to the Southern poll tax requirements meant to keep African-American voters away from the polls during the segregation era, are necessary to prevent "voter fraud". What voter fraud? Proven instances of voter fraud have been only slightly more common than confirmed UFO sightings.
    The only possible reason for these attempts to keep less affluent and minority voters away from the polls is to gain power for the Republicans as the party of upper class and upper middle class whites. The Republicans' attempt to keep minority US citizens away from the polls is part and parcel of their attempt to keep minority non-US citizens away from America and to expel those who are already here. This is not to mention the Republicans' threat to take away 14th Amendment birthright US citizenship from tens of millions of children born in the US to Latino and other minority parents.
    The Republican war on minority voters, which, of course, is by definition directed against US citizens, is only one of the many pieces of evidence showing that the GOP's war on immigrants is part of its larger strategy of using racial politics to achieve the long standing goal of creating a "permanent Republican majority", i.e. putting an end to America's nearly 250 year old experiment with something known as democracy.
    The Republicans, so far, have been all too successful in their attempt to divide minorities and the less affluent and pit them against each other, based on citizenship, or what the Roman writer Seneca 2000 years ago  called condicio nascendi -  the accident of birth. But the savage Republican attack against immigrants (which Obama and the Democrats have responded to with all the force and power of a jellyfish) is only part of a larger strategy. Minorities and the less well off, whether immigrants or American citizens, are all in the same boat. If the Republicans take over the Senate and the White House next year, that boat will be named the Titanic.
  5. Will E-Verify Be Sunk By Repulicans?

    by , 09-16-2011 at 04:43 AM (Greg Siskind on Immigration Law and Policy)
    When I watched yesterday's markup hearing for Lamar Smith's E-Verify bill, most members of the Immigration Subcommittee spoke according to script - except one. California conservative Republican Congressman Dan Lungren gave a very pragmatic assessment of where the GOP is going. Passing E-Verify would be a national disaster for the agriculture sector and the agricultural workers bill proposed by Congressman Smith to help allay fears is not going to be enough.
    From Huffington Post:

    At a Thursday markup of the bill, which would mandate the use of an electronic screening system called E-Verify, one Republican Judiciary Committee member worried aloud that it would hurt agriculture businesses and drive workers underground. Democrats, who by and large oppose the bill, have been airing the same complaints for months, and are now forming an unlikely coalition with conservatives and Tea Partiers who oppose parts of the bill.
    "I just can't abide with what we're doing to my state in terms of the temporary need for temporary workers," Rep. Dan Lungren (R-Calif.) said. "It would devastate agriculture. ... If we do not recognize the demonstrated need for foreign workers, and I'm talking about temporary foreign workers in the agriculture field, we're kidding ourselves."
    Tea Party groups, including Take Back Washington, Tea Party Nation and Liberty Coalition, bought a full-page ad in Politico on Thursday criticizing the mandatory E-Verify bill. They also sent an open letter to members of Congress asking them to oppose the bill to avoid disastrous consequences for American citizens.
    "Punishing businesses and telling citizens they can't work is no way to stop illegal immigration...or fix the economy," the ad reads.

    It's definitely too early to say if we're reaching a turning point on the politics of immigration reform, but when enough of the GOP starts thinking along these lines, we might be able to craft a compromise.
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