April 2012

Immigration News + Analysis

Maggio + Kattar

11 Dupont Circle NW, Suite 775
Washington, DC 20036
202.483.0053 t
202.483.6801 f
www.maggio-kattar.com

Neither the Immigration Reform and Control Act (IRCA) nor the U.S. Citizenship and Immigration Services (USCIS) instructions for completing the Form I-9 require employers to maintain copies of documentation reviewed for Section 2.  There are, however, pros and cons to retaining copies of documentation accepted for the Form I-9.  Your business practices will determine which approach is best for your organization.  One certainty: you must be consistent for all employees.

+    "Pros" of copying documentation:

+    To facilitate self-audits and/or second-level review.  In some cases the practice of maintaining copies to support regularly scheduled compliance audits has been a mitigating factor in the imposition of financial penalties by the Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO).

+    If documentation appears legitimate, it can provide assistance in event of audit.

+    E-verify users must make photocopies of any Form I-551 (Permanent Resident Card) or I-766 (Employment Authorization Card) voluntarily  provided during the I-9 process and retain these copies with the Form I-9.  Exceptions to processes are hard to remember, and therefore to ensure consistency and compliance with E-Verify, E-Verify users may wish to make copy and retain copies of all documentation provided for the Form I-9.

+    "Cons" of copying documentation:

+    Employers must be consistent, and copying presents the risk of not keeping copies for all employees.

+    Copies of documents must only include documents used for the Form I-9.  It is easy, during the new hire process, to inadvertently include documents provided for payroll or other purpose -- which later could raise issues of over documentation.

+    Copies could tend to show that an accepted document was obviously false and further exacerbate a problem.

+    Photocopying documents does not relieve employers from fully completing Section 2 of the Form I-9, or the Form I-9 in general.  

Ultimately, the right decision will be based upon any legal requirements (such as E-Verify) as well as what will work best in your business and what practice will support consistent, reliable results.

Spring cleaning isn't easy - but the maintenance of the practices will help ensure your organization's ongoing compliance.

**This is the second part of a two part series on I-9 document retention.  If you wish to review the first part of this series, please visit our newsletter archives for the March 2012 edition of Immigration News + Analysis. 

In Vartelas v. Holder, the U.S. Supreme Court rejected the retroactive application of an immigration law that renders lawful permanent residents inadmissible (ineligible to be return to the U.S. and resume their legal permanent residence) if they travel abroad after committing certain crimes.  At issue was a provision of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that subjects lawful permanent residents who have committed a "crime involving moral turpitude" to charges of inadmissibility upon return from any foreign travel, no matter how brief.  "Crimes involving moral turpitude" constitute a broad category of criminal offenses in immigration law, including minor violations such as shoplifting.  

The Supreme Court decided that IIRIRA should not apply retroactively to individuals who pleaded guilty to a criminal offense prior to the law's enactment.  The Court reasoned that those who accepted a plea agreement prior to 1996 "likely relied" on the law that existed at the time when weighing their options, and that this new travel "disability" should not be triggered by those early offenses.  This analysis is directly in line with the Court's 2001 decision in INS v. St. Cyr, which emphasized the importance of not retroactively altering the legal landscape that informed plea agreement decisions prior to 1996. 

Noncitizens are cautioned to remember that this decision applies only to lawful permanent residents who pleaded guilty to a crime involving moral turpitude prior to 1996.  Determining the precise immigration consequences of a criminal conviction can be very complex, and a noncitizen with any past criminal violation is urged to speak to immigration counsel prior to travel outside of the United States. 

In spite of this narrow ruling, we welcome the Court's refusal to retroactively apply the harsh provisions of IIRIRA to those who pleaded guilty at a time when there were no immigration consequences to their plea.  This is an important victory for immigrants and their advocates who are simply seeking fundamental fairness in immigration law.   

Remember your first day at your current job, bright-eyed and full of optimism at the promise of a new professional endeavor?  And then, HR, or other designated mercenary, delivers your first assignment: a mountain of paperwork that you need to complete before you can even do what you were hired to do.  As you try to make your way through the personal data forms, payroll forms, tax forms, insurance forms, retirement plan forms, policy acknowledgements and training acknowledgements, your mind quickly goes to its "happy place" while you scan the documents for words like "Signature" and "Sign Here" and take the required action. 

Then, you come across the Form I-9 Employment Eligibility Verification Form.  Easy enough.  Fill out some personal details at the top and then produce a couple of documents for your employer.  Which documents?  Take your pick from the included list, but your employer may not give you any suggestions.  Still need a little help?  No worries.  The form includes two and a half pages of instruction for your reading pleasure. 

For a form that has always included at least a full page worth of instructions, the Form I-9 is exceptionally prone to errors and omissions.  Many factors contribute to faulty forms. Within the proposed new version of the Form I-9, unveiled by USCIS on March 27, 2012, the agency has endeavored to "assist" employers by providing more succinct direction which will expand the current form from 5 pages to 9.   However, we have found that it is not the presence of additional instruction, but a simple process that reduces the need for instruction that improves compliance.

The USCIS invites public comment on the proposed changes through May 29, 2012.  Employers should review the proposed changes in the context of the realities of their business processes as well as human nature.  You can review the full list of changes as well as instructions for providing comments on the USCIS website. 

Below is a summary of the highlights:

Expanded from two-and-a-half to almost six full pages, the language used is more readable with a less formal tone.  Additional instruction for completion of the form for foreign nationals is helpful to employers, yet the specific guidance on how to enter one's name and the date format to be used serve little practical purpose to reduce errors.  Without a way to ensure that this same "name" format is used for payroll purposes - thus reducing the risk of Social Security "No Match" letters and assist in matching payroll records to forms during audit - the value of very specific instruction regarding name entry is unclear.  Similarly unclear is the value of additional instruction with regard to the date format.  Previous versions of the form had already included date prompting directly in the field with only moderate effect on entry behavior.  What is concerning with these more specific instructions is the potential for entries which the government may view as technical errors in form completion and resulting fines.

The proposed form is now comprised of two pages rather than one, with the following expansions:

+    Optional fields such as e-mail address and telephone number for the purpose of assisting DHS in contacting employees directly.

+    A modified status check area with an expanded section to note the foreign passport number and country of issuance for foreign nationals who received their Form I-94 when travelling to the U.S. As this information would likely also be provided as a List A document to the employer, this seems duplicative.

+    In Section 2, the "List A" document section has been expanded to allow enough lines to easily record document sets that include three documents. 

+    The area for employers to enter the employee's start date is now more prominently indicated.  This should help eliminate this common omission.

Employer's recordkeeping practices must ensure page 1 and 2 are kept together, as missing pages could result in fines.

While several of the changes to format and the clarity of the instructions can reduce completion errors, there are other aspects of the proposed changes that may complicate compliance efforts.  Ultimately the form itself needs to be easier to complete and in some areas, the proposed form accomplishes this goal.  The additional instruction pages, like the current instruction pages, likely will be unnoticed by most employees completing the form, due to the nature of most employers "new hire" orientation process and to human nature itself.  Many of the form changes appear tailored to an online completion environment, where data validation is possible, making instructions less necessary, and where the length of a document has little bearing, although this is not an easy or affordable option for all employers.  We encourage employers to take the opportunity to comment on the form as well as review their current policies, processes and procedures with regard to Form I-9 compliance in preparation for the expiration of the current I-9 form in August and the likely implementation of a new form with many of these proposed revisions.

In Bracamontes v. Holder, a published decision issued on March 29, 2012, the Fourth Circuit upheld the eligibility of certain individuals with aggravated felonies to apply for waivers of inadmissibility under Immigration and Nationality Act section 212(h).  This decision follows the direction of the Fifth, Ninth, and Eleventh Circuits, confirming that certain individuals who "adjusted status" to become U.S. legal permanent residents remain eligible to apply for 212(h) waivers after conviction of an aggravated felony.  

Section 212(h) of the Act sets forth the eligibility requirements for waivers of certain criminal issues that would otherwise bar permanent residence.  The law states that those who have "previously been admitted" as lawful permanent residents cannot apply for a 212(h) waiver if they have been convicted of an aggravated felony.   However, there is an important distinction in immigration law between people who have become permanent residents by "adjustment of status" within the United States and those who have applied for permanent residence abroad. Courts agree that the latter group, those who applied for permanent residence abroad and were then admitted as permanent residents, are ineligible for a section 212(h) waiver of inadmissibility following conviction of an aggravated felony.   There has been less agreement on whether this ineligibility applies to those who have adjusted status within the United States.  The disagreement hinges on how immigration law defines "admission," and who exactly has been "previously admitted" as a permanent resident.  The Fourth Circuit has confirmed that adjustment of status is not always equivalent to an admission, and certain individuals who adjusted status within the United States remain eligible for a 212(h) waiver. 

This is a welcome decision as it upholds the plain-language meaning of section 212(h) and refuses to allow the BIA to expand waiver ineligibility beyond Congress' clearly expressed intent.  Most importantly, the decision maintains eligibility for a critical form of relief from removal for certain permanent residents facing compelling family circumstances.

Department of Homeland Security Secretary Janet Napolitano announced that nationals of Syria who were physically present in the U.S. on March 29, 2012 have been designated as eligible to apply for Temporary Protected Status for a period of eighteen months (through September 30, 2013).  Secretary Napolitano determined that Syrian nationals in the U.S. would face serious threats to their personal safety if they were to return home as a result of the deteriorating conditions in their home country. 

On April 13, 2012, the U.S. Department of State adjusted fees on a variety of non-immigrant and immigrant visa applications.  The fees for non-immigrant visas increased in many frequently used categories, notably;  tourist, student, exchange visitor, journalist visas (among others) increased to $160 from $140.  Certain petition based visa applications such as H, L, and O-1 fees increased from $150 to $190.  E-1 and E-2 Treaty Trader/Investor visas decreased from $390 to $270 and fiancé(e) visas also decreased from $350 to $240.
 

The May 2012 DOS Visa Bulletin continues the retrogression announced effective March 23, 2012 for EB-2 cases for Mainland China and India.  Specifically, the new priority date cut-off for second preference for nationals of both countries is August 15, 2007, a distinct and significant change from the May 1, 2010 cut-off date in the April 2012 Visa Bulletin.  After marked improvement for both countries earlier this fiscal year, demand increased dramatically.  The goal of this dramatic change is to maintain adequate numbers for nationals of other countries within the EB-2 visa category and avoid exceeding the annual prescribed numerical limit between now and September 30, 2012.   For the rest of this month, USCIS will continue to accept I-485 applications which meet the previously announced cut-off dates in the April 2012 Visa Bulletin.  The Department of State has noted that it will seek to return to the May 1, 2010 cut off in the next fiscal year (2013) that begins on October 1, 2012. 

USCIS announced the receipt of more H-1B "cap-subject" FY 2013 filings in the first week in which petitions could be submitted (April 1-7) than the number received in the first several months of the last three fiscal years.   Specifically, USCIS's first H-1B cap count noted 17,400 petitions received against the "regular" H-1B quota (including the set aside for Singapore and Chile Free Trade H-1B1s) and 8,200 against the 20,000 cap exemption for those filed on behalf of individuals with U.S. advanced degrees.  By April 13, the agency reported receiving approximately 20,600 cap-subject petitions, and another 9,700 under the advanced degree allotment. 

USCIS has changed the look and feel of the Form I-797C effective April 2, 2012 to printing on plain bond paper and adding a statement at the top indicating that the  form "DOES NOT GRANT ANY IMMIGRATION STATUS OR BENEFIT."  The I-797C is used to notify an attorney and/or applicant of the receipt of a petition or an application, a rejection of a petition or application, a transfer of a pending case to another office for processing, the re-opening of a case or an appointment for an interview or for fingerprint appointments.  USCIS explained that the changes are intended to save on printing and paper costs (estimated to be about $1.1 per year) and to make it clear that the form did not convey any immediate benefit. 

Each year the American Immigration Lawyers Association (AILA), the Center for Human Rights and Constitutional Law (CHRCL), and the National Immigration Project of the National Lawyers Guild (NIP/NLG) select one law student to work on a student-initiated project throughout the summer on a fellowship established to commemorate the life and legal contributions of renowned immigration lawyer Michael Maggio, the co-founder of our firm.  This unique fellowship program aims to strengthen law students' long-term commitment to promote justice and equality for vulnerable immigrant groups.

2012 fellowship recipient Sarah McDonagh was selected in recognition of her efforts to link advocates and attorneys to those most in need of support. The fellowship compliments her clerkship this summer with ASISTA, a partnership funded by the Office of Violence Against Women that works to centralize assistance for advocates and attorneys facing complex legal problems in advocating for immigrant survivors of domestic violence and sexual assault.  A second year law student at the Paul M. Herbert Law Center at Louisiana State University, Ms. McDonagh interned with the WilmerHale Legal Services Center of Harvard Law School in Boston, MA, in the summer of 2009, and also clerked with the Baton Rouge Public Defender's Office in the summer of 2011.  She serves as a research assistant for the immigration clinic at Louisiana State University. 

We extend our congratulations to Sarah McDonagh and applaud her efforts on behalf of some of our most vulnerable immigrant groups!

 

Maggio+Kattar mourns the passing of Oscar Diaz, a long-time client and friend of the firm.  Oscar exhibited enormous courage time and again, from his first days here after leaving his native Bolivia to seek life and freedom in the United States, up until his death earlier this week after a valiant struggle with cancer.   We will remember Oscar for his ever-present kindness and generosity of spirit. 

 

Oscar successfully established his own retail jewelry business, promoting artful and indigenous Latino designs.  We were particularly proud to see him grow out of his own immigrant experience to serve other immigrants in need.  For the past several years, Oscar worked as a program coordinator working with Spanish-speaking inmates in local jails on behalf of Identity, a nonprofit organization established by our firm's co-founder, Candace Kattar.  In this, he was widely acknowledged as an important liaison among Latino inmates, their families and correctional facility staff.

 

Oscar Diaz taught us how to be more compassionate lawyers and human beings, to face one's fears and to believe in the hope and healing of tomorrow.  May his memory be a blessing.  Que en paz descanse.  

MAGGIO +  KATTAR is pleased to invite you to join us for our second quarterly Immigration Community Forum on Wednesday, April 25, 2012 from 9 - 11 a.m.  The firm invites area practitioners and community organizations to this forum moderated by Maggio + Kattar Shareholder Anna Gallagher and subject matter experts:  James Botluk, Assistant Bar Counsel, Attorney Grievance Commission of Maryland;   Elizabeth Herman, Deputy Bar Counsel, District of Columbia Office of Bar Counsel; and Thomas Mason, Partner and Legal Profession and Ethics Co-Chair, Zuckerman Spaeder LLP. 

The Immigration Community Forum will cover pressing ethical concerns for immigration law practitioners from initial engagement to the conclusion of representation.  Our panelists will address the following problem areas:

 +    Successfully navigating the waters of dual representation;

+    Unauthorized practice of law and supervision of non-lawyer professionals;

+     Responsibilities in fraud and false statements from clients;

+    Withdrawing from representation; and,

+    Update on common complaints against practitioners in D.C.   and MD and before EOIR.

Our expert panel will discuss the most frequently filed bar complaints, which involve attorney communication, competency, and truthfulness.  They will also share best practices to avoid common ethical pitfalls.

Please join us in our 5th Floor Conference Room for a continental breakfast at 9 a.m., immediately followed by the panel.

 .

Anna Gallagher and Ruth Dickey wrote an article published by West's Immigration Briefings (March 2012) entitled, "Global Practice: A Survey of Selected Countries Requirements for Business Visitor Visas and Work Permits."

Stephen Pattison is chairing two panels at the AILA Rome District Chapter conference in Bucharest on April 19 and 20-one on Doing Business in the Middle East, and the other on "A day in the life of the Visa Section". 

 

Dree Collopy's article  "No Minor Issue: The Diminished Capacity of Minors in Our Immigration System."  was published in the April 2012 edition of West's Immigration Briefings.

Elizabeth Quinn is presenting at the District of Columbia Bar Association's Continuing Legal Education program entitled "What Every Lawyer Needs to Know about Immigration Law" course series on an introduction to immigration law and family-based immigration law on May 1.   To learn more or register, please visit the District of Columbia Bar Association website.

John Nahajzer will speak at the District of Columbia Continuing Legal Education program on "Employment-Based Immigration: Nonimmigrant Visas" on May 8.  This class will cover the fundamentals of temporary employment visas, including facets of USCIS adjudication and procedures at U.S. consulates abroad.  To learn more or register, please visit the District of Columbia Bar Association website. 

Monique van Stiphout will speak on "Employment-Based Immigration: Immigrant Visas and Corporate Compliance"  at the District of Columbia Bar Association's Continuing Legal Education program on May 15th.  For more information or to register, please visit the District of Columbia Bar Association website.

Jim Alexander and Anna Gallagher will be speaking at the Federal Bar Association Immigration Law Seminar, to be held on May 18-19, 2012 in Memphis, Tennessee, on panels addressing prosecutorial discretion and criminal-immigration issues as well as on non-immigrant and immigrant employment based immigration.

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


Maggio + Kattar, P.C. | 11 Dupont Circle, N.W. Suite 775 | Washington, DC 20036
maggio-kattar.com | phone 202.483.0053 | fax 202.483.6801

Copyright © 2012 Maggio + Katter, P.C. | All rights reserved.