Immigration Insider

The Sky IS Falling

I was stunned to read the following in an article on the current Social Security “no match” notifications mess.  The quote, published in the October issue of Inside Counsel Magazine, reads as follows:

“You can fix a false negative if the agency has enough staffing to deal with it… It’s a logistical issue, not a legal issue.”

This assessment, attributed to the former General Counsel of the Dept. of Homeland Security, absolutely knocked me back in my chair. The gentleman, now in private practice, was discounting the potential impact of the proposed sanctions and fines targeting employers who do not act when notified by the Social Security Administration that some of their employees may not have matching numbers.

This advice is anathema not only to the letter of the law but to the over all enforcement-based philosophy of the Bush administration in its sunset year and it is truly an amazing statement coming from someone who has presided over immigration enforcement in the aftermath of September 11th.

Here’s what’s really going on, folks:

• In August, the US Dept. of Homeland Security gave specific instructions to employers on what they need to do to respond to “no match” letters received from the SSA.
• The regulations carried both a benefit and a threat: Those who followed the letter of the new rules were granted safe harbor; those who did not do so could face an increase risk of civil and criminal penalties, including fines and even jail time.
• The AFL-CIO, the ACLU, and a variety of other labor and civil rights groups-- as well as diverse business interest groups -- challenged these regulations in federal court, securing a reprieve from employers who were fearing the worst.  Some industries, such as the roofing sector, essentially advised an enforcement of “no match” letters would shut down their entire industry.

All of these facts suggest that quote, which casually suggests that fear over the enforcement of the “no match” letters is essentially unfounded, is truly dangerous counsel, and it troubles me that it appeared in the most reputable magazine aimed at in-house corporate counsel.  The position is predicated on an erroneous and naive notion, namely that the SSA has the necessary staffing to distinguish between those incorrectly identified as working illegally and those truly in violation of the US law.

In reality, the Social Security Administration has not been properly staffed in decades and it is certainly not in a position to respond on a real-time basis to these inquiries.   The enforcement efforts by HSA have been entirely that -- enforcement.  No concurrent meaningful staff development to prevent and correct enforcement errors has EVER been considered by this administration...not with SSA, not with USCIS, not with DOL.  The philosophy of the Bush administration, documented time and time again and repeatedly ruled unlawful by federal courts and the U.S. Supreme court, has been as blunt as our international diplomacy:

Sanction first, fine, arrest shut down the suspected violator... and worry about the rule of law when the civil libertarians pitch a fit.

Invariably, in any enforcement action by the Executive targeting corporations, we are operating in a climate of "guilty until proven innocent by a federal court".  Innocent people lose jobs.  Companies lose productivity.  The economy continues to slide.  Moreover, the consolidation of multiple enforcement functions which were previously independant but are now within the absolute jurisdiction of the HSA, combined with the current Executive contempt for the rule of law all but eliminating independant federal agency decision-making, means something even worse that few have noted:

If an enforcement effort under one law is stayed by a federal court, nothing stops the Executive branch from using another enforcement tool to effect the same result.

Translation: if they can't fine employers for SSA "no match" violations, send out the I-9 audit teams.  If the I-9 audit teams can't get it done, send out the health inspectors, etc. 

I have never been in a role of Chicken Little, but that’s how I stand on this one: This is not a “logistical issue”, folks.  This is a legal issue with profound implications and ramifications for corporations which choose to keep their guard down in 2008.

A New I-9 in Your Christmas Stocking

With their characteristic sense of humor, U.S. Citizenship and Immigration Services (USCIS) merrily announced a Christmas present for U.S. employers: based up the rule issued late last month in the Federal Register, employers will be required to use the new Employment Eligibility Verification Form I-9 starting Dec. 26, 2007, or risk fines and penalties.

Why, you ask, do we need a new form I-9? Because the government has changed the list of documents upon which an employer can rely in determining U.S. employment eligibility. Specifically, one document has been added and five have been removed from the category lists. As so often happens with hastily issued regulations, instructions are convoluted and have been reported in various ways. First, on the 11/8 notice, employers were informed they could use the new Form I-9, but were not required to do so. But the latest Federal Register notice says that the USCIS will allow a 30-day transition period before use of the new Form I-9 becomes mandatory, but once the transition period ends, employers who do not use the new Form I-9 could face fines or other penalties. I reread all of this and the best I can advise you is:

Start using the new I-9 NOW.

Since it’s unclear to me, it will probably be equally unclear to those tasked with I-9 audit and enforcement, so I suggest you play it safe and just begin to use the new one immediately. The documents employers can accept under List A on the new form I-9 are:

• U.S. passport.

• Permanent Resident Card or Alien Registration Receipt Card (Form I-551).

• Unexpired foreign passport with a temporary I-551 stamp.

• Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A or I-688B).

• Unexpired foreign passport with an unexpired “Arrival-Departure Record,” Form I-94, bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, if that status authorizes the alien to work for the employer. The documents removed from List A and no longer acceptable as proof of U.S. employment authorization are:

• Certificate of U.S. Citizenship (Form N-560 or N-561).

• Certificate of Naturalization (Form N-550 or N-570).

• Alien Registration Receipt Card (I-151).

• Unexpired Reentry Permit (Form I-327).

• Unexpired Refugee Travel Document (Form I-571).

Folks, I-9 enforcement will hit a new stride in 2008 and that's why the Administration is eager to ram this new form down the throat of Corporate America. The reasons is quite clear: with a lame duck administration, a wide-open presidential election, and a Republican party severely weakened by war-weary voters, what better way to swing voters to the right than to publicize "immigration enforcement"? Remember: Mssrs. Bush and Chertoff are operating under the Executive Branch of our government, meaning these I-9 changes and enforcement actions are immune from Congressional intervention. What more powerful tool to swing undecided voters back toward a Republican presidential candidate than to dedicate the remaining year of this administration to dramatic enforcement targeting unauthorized workers and, by implication, their employers?

Making migrants scapegoats for political purposes is nothing new, but never before have the politics meant a wholesale assault on American competitiveness. Given the current economic and political climate, the GOP views immigration enforcement as one of the few remaining tools in its political arsenal which has both a widespread public awareness factor AND the opportunity to shift their core supporters one hard step further to the right.

U.S. employers would be wise to begin 2008 with a full scale I-9 internal audit and comprehensive systemization of the I-9 process, because the ax isn't aimed exclusively at undocumented workers this time around.

Listen up USG Contractors: Time to Comply

The pressure to comply with employment verification requirements may soon hit companies which contract with the U.S. governement.  This is from SHRM:

"The House has already included language in four appropriations bills that would require all federal contractors to participate in the government's voluntary electronic employment verification system known as "Basic Pilot." SHRM has advocated the removal of these provisions because the Society believes the "Basic Pilot" system is unreliable and unable to verify accurately the legal status of employees at nearly 200,000 federal contractors - more than ten times the number of employers that currently use the "Basic Pilot" system. As the result of SHRM's efforts, the language requiring federal contractors to use the Basic Pilot system has been removed from two of the four appropriations bills sent to the President for his consideration and we are diligently working on the removal of the other two provisions from the remaining bills."

Translation for HR folks with big USG contractors: time to hunker down and get those I-9s under control.  This is the hot topic du jour as far as my inbox for the last few weeks and let me tell you:  it's got the attention of some pretty big players.

Email me at  jlatour@i9advantage.com for information on how we can help you protect your government business from this latest enforcement effort.  Jose