Homeland Security Announces Temporary Protected Status for Haitian Nationals
Homeland Security Secretary Janet Napolitano announced last week a temporary protected status ("TPS") for Haitian nationals who were in the United States as of January 12, 2010. The temporary status will allow eligible Haitian nationals to continue living and working in the United States for the next 18 months. "Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this administration's continuing efforts to support Haiti's recovery," said Napolitano in a statement. Click here to read Napolitano's complete statement.
The temporary status is intended to allow Haitian nationals to stay for 18 months, authorize them to work and send remittances back to Haiti to help the nation "get back on its feet." However, Haitians who now attempt to travel to the United States will not be eligible for the temporary status and will be repatriated to Haiti.
Employers should be aware that Haitian nationals may be legally authorized to work in the United States under the TPS program without being able to present documents that would normally satisfy the requirements of form I9. Employers should review the TPS eligibility for any Haitian nationals who do apply for work. Haitians in the U.S. who may be eligible to apply for TPS should call U.S. Citizenship and Immigration Service toll-free at (800) 375-5283.
New proposed rule from Homeland Security will rescind the controversial no-match rule
One of G.W. Bush’s controversial acts as president was issuing the no-match rule. When employers pay social security taxes, the Social Security Administration (SSA) allocates a certain amount to each employee based on that employee’s social security number. All is well and good when the employer provided numbers match the numbers on file with the SSA. When the numbers don’t match, the SSA sends an aptly named no-match letter. The Bush administration’s no-match rule would have required theDepartment of Homeland Security (DHS) to send its own letter to employers along with the no-match letters from the SSA. The DHS letters, rather than simply stating that the numbers didn’t match, would contain a threat to fix the problem or face liability. As a practical matter, most employers receiving such a letter would opt to terminate the employee at issue rather than face liability.
The real problem with this rule is that just because an employee’s social security number, provided on an I-9 card for example, does not match the number on file with the SSA does not mean the employee is an illegal alien. The SSA’s record keeping is not perfect and the no-match might not be the employee’s fault. Moreover, typos are not uncommon in this context and many no-match situations are the result of accidentally switching a single number. In other words, a no-match does not equal an illegal worker. Terminating employment solely on the basis of receiving a no-match letter could expose employers to liability for wrongful termination.
The DHS has a deadline of September 30, 2009 to rescind the no-match rule. If it rescinds the rule before that date it will not run afoul of the bill recently passed in the Senate prohibiting using any part of next year’s appropriated homeland security funds to rescind the rule. The DHS has indicated that it intends to rescind the rule and focus on assuring employer compliance through programs such as E-Verify.
The bottom line for employers - compliance with immigration laws is just as important as ever, but if the rule is rescinded a no-match letter from the SSA should result in a discussion with the employee, perhaps obtaining another copy of their social security card and checking their I-9 form.
E-Verify Implementation on Track for September 8, 2009
Starting September 8, 2009, employers receiving federal contracts will be required to use the new E-Verify system to check their employees' authorization to work in the United States. This announcement comes after several delayed attempts by the Bush and Obama administrations to implement the E-Verify rule; however, their efforts were thwarted by a stay issued as part of a lawsuit blocking implementation of the E-Verify rule. However, the stay has been lifted, the Obama administration has announced its support for the rule, and it appears that it really will go into effect this time. Really. We're not kidding.
Employers take note: the new E-Verify rule will only affect federal contractors and subcontractors who are awarded a new government contract after September 8, 2009 and that includes E-Verify clause. Federal contractors may NOT use E-Verify to verify current employees until they receive a contract with the E-Verify clause.
For more information on E-Verify, click here to visit the U.S. Citizenship and Immigration Service's E-Verify Website.
Employers Should Keep Using 2/2/09 Version of Form I-9
The current version of Form I-9 (Employment Eligibility Verification) published February 2, 2009 has an expiration date of June 30, 2009, but there is no more current version. What's an employer to do? For now, keep using the February 2 version, says the US Citizenship and Immigration Services.
Need the most recent Form I-9? Click here to download the English version; click here to download the Spanish version. The World of Work will let you know as soon as a new version of the form is published.
ICE Targets Employers by Launching I-9 Audit Program
Implementing a new audit initiative, the U.S. Immigration and Customs Enforcement Service (ICE) has served Notices of Inspection on 652 businesses nationwide. The notices inform employers that ICE will be inspecting their I-9's and other employment records to ascertain whether the employers are in compliance with federal immigration laws and regulations.
The Obama administration appears to be taking a new approach to immigration law compliance by focusing its enforcement activities on employers. Under the Bush administration, ICE was known for sending armed agents into workplaces to round up employees suspected of working illegally. According to this press release issued by ICE, the new strategy is to dedicate resources to auditing and investigating employers in order to reduce the demand for illegal employment .
The 652 Notices of Inspection served last week exceed the total number of notices that ICE served in all of 2008. It appears that these notices are just the first wave of employer audits. In light of ICE's increased auditing activities, now is the time to conduct your own internal audit and ensure that you have proper immigration compliance measures in place.
9th Circuit Orders Damages, but Not Reinstatement for Unauthorized Alien Workers
What's an employer to do when it is ordered to reinstate former employees, but those employees are not legally authorized to work in the United States? Pay liquidated damages instead, according to the Ninth Circuit's recent decision in NLRB v. C&C Roofing Supply Inc.
In C&C, the National Labor Relations Board (NLRB) alleged that the employer unlawfully fired 20 workers for engaging in union activity. The parties reached a formal settlement that called for reinstatement of the illegally fired workers and payment of specific amounts of liquidated damages to each. However, the employer then refused to reinstate the employees because many of them were unauthorized aliens and rehiring them would violate the Immigration Reform and Control Act (IRCA) and the Legal Arizona Workers Act, which both prohibit hiring unauthorized aliens.
The Ninth Circuit solved the dilemma by ordering the employer to pay the agreed-upon liquidated damages, but did not require the employer to reinstate the unauthorized employees. But how does this case square with Hoffman Plastic Compounds Inc. v. NLRB? There, the U.S. Supreme Court held 5-4 that the board may not order back pay for unauthorized aliens, despite their firing in violation of federal labor law, because doing so would violate immigration policy expressed in IRCA. In C&C, the Ninth Circuit dodged that issue by ruling that agreed-upon liquidated damages as part of a settlement do not raise the same issues as back pay ordered by the court, as the employees need not be "available to work" in order to receive liquidated damages. Don't be surprised if this one gets appealed up to the Supreme Court for a determination if it really does square with Hoffman.
Another Day, Another E-Verify Delay
It seems like just a couple days ago that we reported that implementation of the E-Verify System was delayed until June 30. Actually, it was a couple days ago. Well, you can forget that; the The Department of Homeland Security’s Citizenship and Immigration Service (USCIS) has announced that it will delay mandatory use of E-Verify, this time until September 8, 2009. Click here to read the USCIS's press release on the delay.
Why the delay? For once, it's okay to blame the lawyers: the parties in a lawsuit over the legality of E-Verify, Chamber of Commerce of the United States of America, et al. v. Napolitano, agreed to delay implementation of the rule from June 30 until September 8 to give the Obama administration more time to review the case and determine its position. Initially, federal contractors were supposed to start using E-Verify on January 15, but the rule has been postponed, and postponed, and postponed again. Keep watching the World of Work's continuing e-verify coverage to see if the new September 8 date will stick, or whether there will be more delays.
E-Verify Delayed Yet Again!
Still another delay for implementation of the mandatory E-Verify system for federal contractors. The Department of Homeland Security’s Citizenship and Immigration Service (USCIS) announced for a third time that it will delay mandatory use of E-Verify, this time until June 30, 2009. Click here to read the USCIS's press release on the delay. Click here for the World of Work's continuing e-verify coverage.
E-Verify Delayed (Again) Until May 21
Another delay for implementation of the mandatory E-Verify system: The Department of Homeland Security's Citizenship and Immigration Services announced today that it will delay mandatory use of E-Verify until May 21, 2009. Click here to read DHS's press release. Why the delay? The Obama Administration wants additional time to review this and other rules that carried over from the Bush era.
As previously reported in the World of Work, President Bush's executive order would have made using E-Verify mandatory starting January 15, 2009 for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. A coalition of employer's groups sued, seeking an injunction against the rule. Because of the lawsuit, the effective date of the new rule had previously been delayed until February 20, 2009.
New Form I-9 Available For Download
Finally - the new Form I-9 is here! Click here to download the new Form I-9. Note: the new form is for use only on or after April 3, 2009; until then, keep using the current Form I-9.
What's the Form I-9 you ask, and what's all the fuss? All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. The list of acceptable documents can be found on page 4 of the forms.
Business Groups Sue to Block E-Verify Rule
The Society for Human Resource Management, the U.S. Chamber of Commerce, and three other groups filed a lawsuit late last month challenging the legality of an executive order that requires federal contractors to use E-Verify, the federal government's Web-based system that uses Social Security files to ensure that employees are legal immigrants or citizens eligible to work in the United States. Click here to read a copy of the complaint: Chamber of Commerce of the United States of Am. v. Chertoff, D. Md., No. 8:08-cv-03444-AW (12/23/08).
President Bush signed an executive order in June that made E-Verify mandatory starting January 15, 2009 for federal contractors with projects exceeding $100,000 and for sub-contractors with projects exceeding $3,000. The lawsuit seeks an injunction against the January 15 implementation of the executive order.
According to SHRM's press release, the system isn't ready for widespread use and would place an unreasonable burden on employers. “This massive expansion of E-Verify is not only bad policy, it’s unlawful,” according to a U.S. Chamber of Commerce's press release. “The Administration can’t use an Executive Order to circumvent federal immigration and procurement laws. Federal law explicitly prohibits the secretary of Homeland Security from making E-Verify mandatory or from using it to re-authorize the existing workforce.”
The World of Work will be watching this lawsuit, and we'll post updates as they occur. For now, it's safest to assume that the order will take effect January 15 and that contractors will be required to use the system. If that changes, we'll let you know.
Immigration: More Changes to Form I-9 On The Way
U.S. Citizenship and Immigration Services (USCIS) last month submitted an interim final rule intended to streamline the Employment Eligibility Verification (Form I-9) process. Click here to read the USCIS' Press Release on the interim final rule.
One result of this new rule will be a new Form I-9, which will be made available sometime in the next two months; until then, continue to use the current Form I-9. Once the new I-9 is available, we'll post it here on the World of Work. Among other changes, the new form will narrow the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. The revised Form will also include revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.
Remember: employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. For more information, check out the USCIS' information website in the Form I-9.
Ninth Circuit Upholds Legal Arizona Workers' Act
This week the Ninth Circuit Court of Appeals ruled that the Legal Arizona Workers Act (LAWA) is not preempted by the federal (IRCA). Rather, the court held, LAWA falls within the scope of the “savings clause” of IRCA’s express preemption provision as a “licensing law” and is therefore enforceable. A coalition of human rights and employers' groups challenged the law on several grounds, all of which were rejected by the Ninth Circuit. To read the court's opinion, click here: Chicanos Por La Causa v. Napolitano.
LAWA allows Arizona state courts to suspend or revoke business licenses of employers who intentionally employ "unauthorized aliens," and also required Arizona employers to use the E-Verify System to check applicants' eligibility for employment. Arizona employers should review this Notice to Employers from the Arizona State Legislature for more information.
Now that the Arizona law has been upheld (and assuming the U.S. Supreme Court does not hear further challenges), the World of Work expects anti-immigration groups to push for similar laws in other states.
