Maggio+Kattar
May 2013

Immigration News + Analysis
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+ Compliance Corner:

Help You Don't Want From Your Electronic I-9 System 

Electronic I-9 systems are becoming even more attractive to employers as they realize the additional compliance burdens imposed by more specific instructions, more pages to maintain and increasing pressure to adopt E-Verify, the online "companion" to the Form I-9. Electronic forms systems not only provide a potentially more reliable and legible manner in which to capture and maintain data, but they also allow for instant collaboration with information stored in other systems, reporting and analytics and can reduce human error with form completion tools such as validation, pre-populated fields based on information from other systems, drop down lists and other form tools.

 

However, some electronic form tools that may be standardly used for other forms within an organization are not permissible with the Form I-9.

 

  1. Pre-population of data in Section 1 (Employee Information): Your Electronic I-9 System may be linked with your applicant tracking or other HR system and therefore you might conclude that it would facilitate the process to pre-populate the data already collected in those systems into the Form I-9. ICE recently made clear that no one (or thing) other than the employee (or their translator) may complete Section 1 of the Form I-9.    
  2. Data Validation in Section 2 based upon information provided in Section I: Your Electronic I-9 System may not prompt the Employer representative to enter specific documentation based on the status indicated by the employee in Section 1 or data in other systems that may be linked to the Form.    
  3. Drop Down Lists or automatic population of Issuing Authority based upon Document Title in Section 2: Your electronic I-9 system may not populate the issuing authority in any way based on the document title entered. (For example if you enter "Social Security Card" - the system cannot populate with "Social Security Administration". There are other entities that could have been the issuing authority of the card and the Employer representative must indicate which one specifically.

 

Employers may not necessarily apply the same logic and standards for the Form I-9 that they would for other organizational forms that are completed electronically, and some providers of electronic I-9 systems have proven to be greater experts in system design than I-9 compliance. Therefore, employers should not rely solely on their system provider to ensure they are compliant with I-9 rules. Storage, retrieval, process and functionality must be reviewed and chosen carefully to ensure that efficient business operations are supported as well as compliance. For many employers, the benefits of storing and tracking I-9s online, being able to create reports and analysis and to automatically link to E-Verify to create cases, well outweighs any potential risks. Those risks can be avoided with careful collaboration with I-9 compliance experts, such as your Maggio-Kattar attorney.

Law Enforcement's Use and Maintenance of Gang Databases May Create Stumbling Block for Latino Youths Hoping to Benefit from Comprehensive Immigration Reform*

Law enforcement agencies throughout the country rely on databases to help them track, monitor and prevent or prosecute criminal gang activity. Yet these databases have come under scrutiny in a growing number of jurisdictions. First, and perhaps most importantly, the databases have been found to be over-inclusive and contain insufficient oversight of the data entries. The system offers no opportunity for an individual to appeal for the removal of his/her name and does not notify the individual that s/he has been entered into the database or to a parent or guardian if the individual is a minor, and contains inconsistent purging requirements. The names of active gang members, "wannabes," friends, and associates of gang members or alleged gang members, are contained in these databases. Unlike sex offender databases, you can be included in a gang database without having been arrested or convicted of any crime, simply because in the opinion of a law enforcement officer you are "suspected" of being a member of a criminal gang. More importantly, and alarmingly, Latinos and African Americans are disproportionately represented in these databases across the country.

Despite these multiple, serious flaws, including possible violations of procedural due process, the Department of Homeland Security ("DHS") relies on these databases to make determinations as to whether or not individuals are barred from the proposed Registered Provisional Immigrant Status benefits contained in the Border Security, Economic Opportunity, and Immigration Modernization Act. Under Section 3701(c) the government may bar an individual if it deems that person to have associated with gang members. Thousands of otherwise eligible Latinos, never having been convicted of any crimes, may be barred from legalizing their status because DHS will find these names in the databases. As our high school dropout rates for Latinos continue their meteoric increase, and these young people are becoming increasingly disenfranchised, it is not surprising that their numbers soar in the gang databases. Community-based organizations that provide prevention and support services to young Latinos are all too familiar with the profiling of these young men and the erroneous labeling of them as gang members.  

 

Since individuals included in the database do not know in advance that their names are included in these databases, it is entirely possible that many may spend thousands of dollars in legal fees, filing fees and penalties to try to legalize their status under the new legislation, only to find out that they are barred because their names are included in a gang database. Importantly, these databases also have different purging requirements. Depending on the time of year, and the amount of time that has passed since coming to the attention of law enforcement, an individual who was in a gang database at some point may or may not still be documented there. But whether or not that name is still in the database does not necessarily have anything to do with that person's engagement in criminal activity. It may only have to do with the passage of time. This is the faulty and arbitrary nature of the system that will be relied upon to determine individuals' qualifications for legalization.

 

We already have in place the ability to bar individuals from legalizing their immigration status if they have been convicted of serious crimes, whether gang-related or not. We do not need a sweepingly broad measure - association with gang members - in order to ensure our country's security. The authors of Senate Bill 744 declare that "As a nation founded, built and sustained by immigrants we also have a responsibility to harness the power of that tradition in a balanced way that secures a more prosperous future for America." Denying thousands of Latinos the opportunity to legalize their status based on specious information contained in a seriously flawed system of identification, will cause us to lose the power of that noble tradition and crush our prospects for a more prosperous future.

 

*We extend our sincere thanks to Maggio + Kattar Co-Founder and non-profit, Identity, co-Founder Candace Kattar for sharing her thoughts with us in this editorial. 

Supreme Court Rejects Broad Interpretation of Drug Trafficking Aggravated Felony Ground, Affirms Importance of Traditional, Categorical Approach 

In Moncrieffe v. Holder, the Supreme Court, in a 7-2 decision, limited the drug trafficking aggravated felony ground to exclude convictions that included the mere social sharing of marijuana, where the crime was punishable under a state statute as possession with intent to distribution. In so doing, the Supreme Court preserved the eligibility of many longtime lawful permanent residents to seek a discretionary pardon before the immigration court instead of being subject to mandatory deportation. The Supreme Court's decision is also significant in affirming the importance of the traditional categorical approach, which has been eroded by agency decisions in recent years.

 

In order to determine whether a state drug conviction constitutes an aggravated felony, the Supreme Court jurisprudence that has developed over recent years has established that the elements of the state crime must match the elements of an offense that would constitute a felony under the Controlled Substances Act. If the state crime would constitute a felony under the federal CSA, then the state crime is an aggravated felony. If the state crime would be classified as a misdemeanor under federal law, then it is not an aggravated felony, and the individual (though still removable from the United States for having a controlled substance conviction) retains the ability to seek discretionary relief before the immigration court, in the form of cancellation of removal for permanent residents or asylum.

 

Generally speaking, drug offenses that involve distribution of a controlled substance are classified as felonies under federal law. However, federal law also contains a mitigating exception for the distribution of a small amount of marijuana with no remuneration. The Supreme Court looked at the Georgia statute in question and determined that because the state statute did not establish whether it involved either remuneration or more than a small amount of marijuana, it did not qualify as an aggravated felony. In reaching this conclusion, the Supreme Court rejected the reasoning of some federal courts and of the Board of Immigration Appeals, which had held that the respondent in an immigration case had the burden to come forward with evidence conclusively establishing that his or particular crime did not involve remuneration. Instead, the Supreme Court reaffirmed the importance of the traditional categorical approach, which looks only to the minimum conduct necessary to sustain a conviction. If the minimum conduct necessary to sustain a conviction can be satisfied by conduct that does not constitute an aggravated felony, then the inquiry ends there.

 

The importance of the Supreme Court's decision reaches beyond simply the drug trafficking aggravated felony ground. First, the Court's reasoning reaffirms that the rule of lenity applies in immigration law, meaning that ambiguities in the statute should be construed in favor of the non-citizen. Second, in rejecting the government's contention that "mini-trials" as to the specific facts of the offense are appropriate, the Court also recognized the difficulties that unrepresented and detained respondents have in defending themselves in immigration court. Finally, the Court strongly criticized the government's overreach in attempting to brand non-serious drug offenses as aggravated felonies. For example, in the facts of the Moncrieffe case, the respondent possessed the equivalent of two or three marijuana cigarettes, and, under the rule proposed by the government, would have been deemed ineligible to apply for any type of discretionary relief from the immigration court, despite the fact that he had lived in the United States as a lawful permanent resident since the age of three. The Court noted in strong language that it was the third time in seven years it was determining whether a low level drug offense constituted an aggravated felony, and criticized the government for advancing arguments that defied commonsense.

 

The Supreme Court's decision in Moncrieffe is an important one that protects the rights of noncitizens, including longtime lawful permanent residents, challenging their removal from the United States.

Departments of Justice and Homeland Security Announce New Safeguards for Immigrants in Removal Proceedings with Serious Mental Health Disorders 

The Department of Justice (DOJ) and Department of Homeland Security (DHS) have announced new safeguards to protect the rights of immigrants with mental disabilities who are in detention and facing deportation. DHS is the agency in charge of prosecuting individuals in removal proceedings and also detains many mentally ill non-citizens. DOJ is in charge of the nation's immigration judges, who will generally determine whether or not an individual will be removed or deported from the U.S.

 

The announcement by the two agencies came just one day before a federal judge in California, Judge Gee, ordered immigration courts in three states to provide legal representation to mentally ill detainees, after a class action lawsuit was filed by the American Civil Liberties Union in 2010. The announcement by DOJ and DHS would essentially make the California judge's order apply nationwide.

 

The procedural protections announced include: conducting screenings for serious mental disorders when a detainee enters a detention facility; providing competency hearings and independent psychological or psychiatric evaluations of inmates; appointing qualified representatives to immigrant detainees who cannot afford to hire an attorney; and providing bond hearings to mentally incompetent individuals who have been detained for at least six months (regardless of whether those individuals would otherwise be subject to mandatory detention under the immigration laws).

 

This announcement represents the first time that the government has agreed to pay for legal representation for respondents before the immigration court. The Senate bill on comprehensive immigration reform also contains provisions providing government funds for representation not only for the mentally incompetent but also for minors in immigration court proceedings.

 

The danger of a system with no oversight and no protection for mentally ill immigrant detainees is illustrated by the story of one of the lead plaintiffs of the California lawsuit, Jose Antonio Franco Gonzalez. Mr. Franco suffers from severe mental retardation and his immigration court case was administratively closed because he was unable to understand the nature of his immigration court proceedings. However, after his case was closed, he was detained for more than five years and shuffled among various detention centers before he had a chance encounter with a lawyer for a non-profit organization. The ruling by Judge Gee and the announcement by DOJ/DHS represent positive steps forward in protecting the rights of the most vulnerable in our immigration system, such as Mr. Franco.
International Students to Be Subject to Increased Scrutiny Upon Return to the U.S. 

According to an internal memorandum from a senior official at Customs and Border Protection (CBP), all F-1 visa holders seeking admission to the United States will now have the validity of their student status checked by a border agent prior to being admitted into the country.

 

Under prior procedure, a border agent at primary inspection would not have had access to information in the Student and Exchange Visitor Information System, or SEVIS. The information contained in SEVIS would have been verified only if the student was referred to secondary inspection, where his or her student status could be confirmed.

 

After the Boston marathon bombing, it was revealed that an international student charged with hiding evidence after the bombing was allowed to re-enter the country despite the invalidity of his student status. As a result, customs and immigration authorities accelerated their efforts to verify the status of all student visa holders applying for admission to the United States. The new proposed procedure will involve the verification of a student's visa status before the individual arrives in the United States by looking to information contained in flight manifests. Customs and border agents may also check the visa status manually with the agency's national targeting data center.

 

It is unclear at this time whether this new policy will cause significant delays at the airport for returning student visa holders. However, F-1 visa holders are advised to allow for additional time to go through immigration processing, at least while the policy is in its early stages.

CBP Rolling Out Automation of I-94 Arrival/Departure Records

As reported in our April 2013 newsletter, U.S. Customs and Border Protection (CBP) has automated the Form I-94, Arrival/Departure Record. The I-94 provides international visitors evidence that they have been lawfully admitted to the United States, which is necessary to verify immigration status and employment authorization. Affected visitors will no longer need to fill out a paper form when arriving in the U.S. by air or sea. CBP will now generate records of admission using traveler information already transmitted electronically.

 

The change was implemented at certain air and sea ports beginning on April 30 including Charlotte-Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O'Hare, Miami International Airport, and Houston Bush Intercontinental Airport. It is being rolled out across the country through May 21.

 

Travelers that require a hard copy or other evidence of admission may access that information online at http://www.cbp.gov/I94 if they did not receive a hard copy attached to their passport. From there, individuals can print a copy of the I-94 based on electronically submitted data, including the I-94 number from the form, to provide as necessary to benefit providers or as evidence of lawful admission. We continue to recommend that individuals print and maintain I-94 copies in their records for all U.S. entries.

DOL, DHS Publish Interim Final Rule on H-2B Prevailing Wage Methodology; DOL, USCIS Resume Processing

The Departments of Labor (DOL) and the U.S. Department of Homeland Security (DHS) published a joint interim final rule on wage methodology for use in the H-2B program for temporary, non-agricultural workers. The rule revises the prevailing wage methodology used by the DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with H-2B Applications.

 

The interim final rule was published in response to a court order issued by the U.S. District Court for the Eastern District of Pennsylvania in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis in which the court vacated a portion of the 2008 wage methodology rule dealing with the way the DOL determines the prevailing wage when relying on the Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey, and provided the Department of Labor with 30 days to bring its practices into compliance.

 

On April 24, 2013, the effective date of the interim final rule, the DOL resumed processing both pending H-2B prevailing wage requests and H-2B applications for temporary labor certification based on the OES wage survey data, in accordance with standards set in the interim final rule. USCIS also has resumed processing of all Form I-129 (Petition for Nonimmigrant Worker) H-2B petitions for temporary nonagricultural workers.  As noted in our April 2013 newsletter, USCIS temporarily suspended adjudication of most H-2B petitions while the DOL and DHS considered its options in response to the court order.  

Social Security Administration Updates Policy and Documentary Evidence of Nonimmigrant Status 

The Social Security Administration updated its Program Operations Manual System (POMS) substantially in April, adding "admission stamp in unexpired foreign passport" to its list of acceptable primary evidence of identity among other key changes. The updated SSA information, "List of Documents in Priority of Acceptability for Use as Evidence of Identity," notes that this is considered to be a separate document from an unexpired foreign passport.  SSA has also posted new types of nonimmigrant evidence, including the admission stamp and recently introduced versions of the I-94 Arrival/Departure record, and has added a parole stamp placed in an unexpired foreign passport as acceptable evidence of parole status for a Social Security number (SSN).

 

Importantly, SSA has also eliminated the 10-day hold procedure for verifying evidence of status for an SSN using the Systematic Alien Verification for Entitlements (SAVE) program through the enumeration system (SSNAP).  SSA made these changes as a result of Department of Homeland Security (DHS) automation of the I-94 Arrival/Departure record and recent DHS information regarding the real-time verification of alien status information. 
Elimination of the Family-Based Fourth Preference Category: Brothers and Sisters of U.S. Citizens
The Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), which is currently under review by the Senate Judiciary Committee, proposes to eliminate the Family-Based Fourth Preference Visa category which allows adult U.S. citizens to petition for their brothers and sisters to immigrate to the U.S as permanent residents.

Under the current system, visas are distributed to applicants seeking to become U.S. permanent residents according to a preference system. Green card applications based on a sibling relationship with a U.S. citizen fall under the Family-Based Fourth Preference Visa category. U.S. citizens must be 21 years old or older to be eligible to petition for their brother or sisters. The U.S. Department of State allocates approximately 65,000 visas per year for this category. There are currently significant backlogs under this category; the longest waiting time is for siblings from the Philippines. (According to the U.S. Department of State's visa bulletin, immigrant visas are currently available for siblings from the Philippines if their applications were filed on or before October 1, 1989.)

 

Under the Senate Bill, this preference category would be eliminated 18 months after the new Act is enacted. However, applications under this preference category that are submitted before the law is enacted will be adjudicated. Therefore, it is important that U.S. citizens, who want to petition for their brothers and sisters' permanent residence status in the U.S., submit their petitions as soon as possible. The first step in the application process is to file a Petition for Alien Relative, Form I-130, with the U.S. Citizenship and Immigration Services. The U.S. petitioner must provide proof of U.S. citizenship and submit a copy of his/her birth certificate and a copy of his/her brother or sister's birth certificate showing that they share at least one common parent. There have been suggestions that the current backlog associated with this preference category will be reduced following the enactment of the Act. However, it is currently too soon to predict what the final law and its regulations will look like.

M+K Global Immigration Update: Canada

 

Key Changes Announced to Canadian Temporary Foreign Worker Program

On April 29, Federal Immigration Minister Jason Kenney and Human Resources and Skills Development Canada (HRSDC) jointly announced that there would be significant changes made to the Temporary Foreign Worker program (TFW). The TFW program, which is jointly managed by HRSDC and the Citizenship and Immigration Canada, allows Canadian employers to hire foreign nationals to fill temporary labor and skill shortages when qualified Canadian citizens or permanent residents are not available. Employers seeking to higher a foreign worker through the TFW program must first obtain a labor market opinion (LMO) from HRSDC. A positive LMO means that the employer has tried but has been unable to find a Canadian or permanent resident for the job, that the job offer is genuine, and that the employer has met job offer commitments to temporary foreign workers they have hired in the past. Not all jobs require an LMO. For example, jobs that fall within the categories enumerated under the North American Free Trade Agreement (NAFTA) or an agreement between the federal government and a provincial or territorial governments, are exempt from the LMO requirement.

 

Two of the changes that have already taken effect include the temporary suspension of the Accelerated Labor Market Opinion process, which was first introduced in 2012, and the requirement that employers pay TFWs the prevailing wage.

 

Future changes include:

 

  • Increased TFW program application fees;
  • Introduction of processing fees for LMO applications;
  • Expanding the government's authority to suspend and revoke work permits if the program is being misused;
  • Requiring that only English and French can be cited by employers as mandatory language requirements for the job;
  • Changes to the LMO form to add questions ensuring the TFWP is not being used to facilitate the outsourcing of Canadian jobs; and
  • Requiring employers to have a plan in place to transition to a Canadian workforce over time through the LMO process.

 

There has been a recent announcement about new documentation requirements for employers bringing in foreign national employees who will be assisting in "Offshoring". Offshoring refers to the relocation by a company of a business process from one country to another. In the past, offshoring was primarily associated with operational processes such as manufacturing, or supporting processes, such as accounting or IT services. More recently, offshoring has been associated with technical and administrative services supporting domestic and global operations. Canadian businesses that are providing outsourcing services to Canadian companies will now be required to provide additional documentation and complete a separate form in support of a Labor Market Opinion if the job offer to the foreign national employee connected to a contract or subcontract that will facilitate offshoring. 

 

There have also been suggestions that Service Canada will apply greater scrutiny on the LMO recruitment process and may require employers to place their job postings on professional national job search engines recognized by the Canadian government, such as Workopolis and Monster.ca.

 

These changes were brought on by allegations that employers were abusing the TFW program by replacing Canadian workers with TFWs in sectors where there was not a shortage of available and qualified Canadian workers. The implementation of these new, stringent regulations will likely result in longer processing delays and reduced productivity for any companies that rely on a foreign workforce to remain competitive in the global market. 

M+K I-9 and Corporate Compliance Update
Maggio + Kattar Managing Shareholder, Jim Alexander will join HR Consultant and I-9 Specialist, Theresa Nahajzer for an I-9 Compliance Update on Tuesday, June 11th. The webinar will focus on changes and updates to corporate process and procedure necessitated by the recent introduction of the new I-9 form. To receive an invitation to the webinar or for more information, contact the legal professional that you work with at Maggio + Kattar or email us at [email protected]

M+K Immigration Community Forum

  

Legal Strategies and Advocacy Efforts: Immigration and the LGBT Client

Maggio + Kattar is pleased to announce that its third 2013 Immigration Community Forum will be held on Thursday, June 20, 2013 from 9:00 - 11:00 a.m. This forum will address the representation of members of LGBT clients by identifying current and potential legal strategies available to assist LGBT clients and as well as on-going legislative initiatives. A panel of experts will present on the following topics:
  • The case pending before the U.S. Supreme Court Challenge on the Defense of Marriage Act (DOMA) and how the decision will impact legislative and administrative efforts for LGBT equality;
  • Advocacy for expanding LGBT immigration options for non-immigrant and immigrant visas;
  • Prosecutorial Discretion, Deferred Action, other administrative options currently in place for LBGT cases; and,
  • Immigration options for members of the LGBT community and the use of expert statements regarding country conditions.

The forum will be moderated by Maggio + Kattar Shareholder, Jim Alexander, and we are honored to have the following panelists:

  • Michael Sisitzky, Immigration Equality;
  • Mark Shmueli, Law Offices of Mark Shmueli; and,
  • Todd Pilcher, Dzubow & Pilcher. 

Please join us in our 5th Floor Conference Room for a continental breakfast at 9:00 a.m., immediately followed by the panel.  RSVP to: [email protected]. Maggio + Kattar, 11 Dupont Circle, NW, Suite 775, Washington, DC 20036. 

M+K Attorneys About Town

Jim Alexander will present at a District of Columbia Bar Association Continuing Legal Education program on June 4th entitled, "Avoiding Ethical Pitfalls in Immigration Law."

 

Anna Gallager will be presenting at the Federal Bar Association in Memphis, TN on May 17th and 18th on pardons and post-conviction relief for noncitizens, prosecutorial discretion and Immigration and Customs Enforcement "Hot Topics."

 

Jim Alexander spoke on a panel on Friday, May 10th at the American Bar Association Section on Taxation's annual meeting. Jim's panel covered the employment, immigration and tax issues impacting foreign nationals present in the United States under non-immigrant visas. 

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.


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