Immigration Insider

Federalizing the Local Cops

Nik Steinberg wrote a heck of an editorial in The Christian Science Monitor and the sheer logic of it should have the feds blushing.  Here's a few choice excerpts...

• "Imagine living in a state where local cops can stop anyone they suspect of being in the country illegally, and arrest them if they lack proof of citizenship. Last month, Rhode Island Gov. Donald Carcieri signed an executive order directing state police to enforce federal immigration law, which will let them do just that."
• "such laws make communities less safe by discouraging immigrants from cooperating with local police. Police depend on residents to report crimes and identify criminals. But when immigrants fear that talking to officers may lead to their deportation, they remain quiet."
• "Proponents of reforms like Rhode Island's argue that immigrants bring more crime to neighborhoods. They are wrong. Evidence overwhelmingly shows that immigrants - documented or not - commit less crime than US natives. The erosion of public trust is not just bad for immigrants; it is bad for whole neighborhoods."

The fundamental sign of a weak society is when the government breeds a culture of snitching.  Consider Cuba, where the Castros have maintained authority through the use of the "CDRs", the Comite de la Defensa de la Revolucion".  The concept is simple: deputize another and task him with your job while puffing him up with self-importance.  In Cuba, there are thousands rotting in prison as the result of a wisecrack overheard by the old man in the next apartment who happens to be the local CDR guy.  Such power is Napoleonic and I have seen it time and again in the infantile decisionmaking of first tour junior consular officers more self-obsessed with authority than infused with a sense of justice.  It's ugly and it brings out the Barney Fife in all of us.

Last week, we looked at employers covertly setting up the arrest of their employees in a panicked attempt to detach themselves from potential liability.  Today we look at the notion of delegating federal immigration powers to local police.

Does anyone in Washington remember this thing called The Constitution or am I dreaming??

How to Further Mess Up This Economy

I consider the U.S. Chamber of Commerce (USCC) to be a pretty credible organization as far interests groups go.  The main value of their efforts is in serving as a reality check for governmental "initiatives" designed to "help".  For this reason, the results of their recently commissioned study caught my eye, and it is yet another glaring revelation of just how oblivious Washington is to the precarious state of our national economy, Wall Street bailouts notwithstanding.

According to the study, performed by former OMB economist/now-consultant Richard Belzer, the USG's proposed plan to crack down on illegal workers could cost employers more than $1 billion a year and legal workers billions in lost wages.  The study will be among public comments submitted to the Homeland Security Department on the proposal. The department could adopt the proposal after reviewing the comments. The deadline for comments is Friday.  The CRITICAL issue revealed by Belzer:  based upon a somewhat-forgotten-by-this-administration 1981 law, agencies are REQUIRED to do a comprehensive study of proposed regulations if the cost of implementation exceeds $100 million.

The buzz, of course, is all about those now-infamous "no-match letters" the SSA sends to employers. They often occur because someone is working illegally, but a mismatch can also take place because of typos, misspellings and name changes, among other reasons.  Prior studies have documented that the USG's official assessment of an error rate of 10% is twice that.  Naturally, in keeping with the long-standing policy of establishing delusional assessments of the impact of yet another regulation/form on employers, the DHS determined there would not be a heavy cost to employers.

The funny/sad part is that Belzer didn't even dispute the USG's given numbers, which are no doubt hopefully optimistic: he accepted as a given the Homeland Security's estimate that 2 percent of legal workers a year would lose their jobs because they can't resolve the Social Security mismatch. But unlike the government, he did the math, concluding that this adds up to between 37,000 to 137,000 unable to get work. Belzer estimated their lost wages would be from $8 billion to $37 billion.

His cost estimates are based on the department's original plan to enforce the no-match rule after the government sent 140,000 employers no-match letters, blocked by U.S. district judge last October after groups opposed to it sued. The department is, of course, appealing...stay tuned.

SHRM Lobbies Oklahoma in Support of Biometrics

SHRM headed to Oklahoma Monday to encourage small business owners to lobby their congressional delegation in support of the immigration reform bill. the organization is supporting.  The measure would require employees and applicants to prove their identity to employers by providing biometric information, and would strengthen penalties for employers who hire illegal immigrants, among other provisions. Bob Carragher, manager of government relations for the Society for Human Resource Management, was among those speaking to Oklahoma small business owners at the annual Small Business Day At The Capitol event.

Currently, Oklahoma's law mandates the use of E-Verify system, available online. According to Mr. Carragher, in 2006, when government officials raided six Swift & Co. meatpacking plants, they discovered hundreds of illegal immigrants working for the company. But Carragher said all those employees' information had been checked through E-Verify. The proposed legislation -- which gives me the willies given its various implications -- would not let that happen, according to SHRM.  I happened to be passing through Tulsa yesterday and discussed this with several businessmen who were as skeptical as I am about the proposal.

The one thing I agree with is regarding the use of a TRUE "biometric identifier" -- such as the thumbprint SHRM wants -- to confirm identity and work authorization.  ICE's current "photo tool" is a complete sham, dressing up increased employer liability via the subjective review of photos (which do not "metric" anything "bio" save a truly prominent shnaz or ears at best) as "biometric."  DON'T USE THE PHOTO TOOL, GUYS!  All it does is increase employer risk as it is currently configured!

The SHRM proposal is so filled with problems that the likelihood of passage is virtually nil: to me it is notable that the leading HR organization would create proposed legislation so utterly disconnected with a meaningful resolution of the basic problems of privacy and  other core constitutional issues.  But, then again, we aren't exactly seeing anything "meaningful" from anyone as far as this issue, are we?

Deputizing Employers: ICE's New Angle

I've been pondering the quagmire in which ICE's enforcement actions placed Pilgrim's Pride recently.  Imagine this scenario:

You are a corporate compliance manager/counsel/etc. and the phone rings.  A person claiming to be from ICE advises you that your company is going to be subjected to an I-9 audit and you have 3 days to get it together.  Oh, and by the way, "the extent of your cooperation will determine what sanctions will be determined if anything is non-compliant."

To those of us who live this stuff everyday, that last sentence is translated as roughly "do what we say or you can go to jail."  Given the fact that there probably isn't a company in the U.S. which is 100% compliant, things get scary.  Suddenly, it isn't the company and government sorting out discrepencies to insure enforcement; instead, it's your employees' hides vs. your own, and jail time wasn't part of the plan for you.  This is from the press release issued by Pilgrim's Pride after the recent raid:

"Pilgrim's Pride cooperated fully with ICE and the U.S. Attorney's office to help them apprehend these individuals. In fact, it was Pilgrim's Pride that uncovered the identity theft situation in Batesville and notified the federal government, and we worked closely with them to identify those individuals who were apprehended at the Batesville site."

Think about this, Folks:  we are at a point now where employers are not only mandated to cooperate with authorities to save us from unauthorized chicken pluckers, but we have to help round them up for ICE.

This stinks of something which is not what I believe to be democracy, and as an American who loves the Constitution passionately, it really, really bothers me.

Between a Rock and a Hard Place

In the midst of the current chaos caused by the Feds and their "no holds barred" enforcement efforts, one has to wonder if anyone in Washington is aware that they have effectively placed U.S. employers in a irreconcilable Catch-22, one which has the potential to disrupt our economy far beyond the sub-prime/housing sector mess by further destabilizing the agriculture, food service, hospitality and other sectors.

We can only look at the unfolding storyline from a given snapshot in time, and here is where we sit today: ICE is stalking the U.S. in search of employers with defective I-9 compliance, which is pretty much like scouring the beach for sand. (I can tell you that after 17 years of practicing immigration compliance law, I have never conducted an I-9 audit which failed to produce numerous defects.)

On top of the I-9 audits, we have the SSA regs looming as well.  Under the still pending "No Match" regulations, employers whose workers fail to straighten out their problem with the SSA within 90 days have to have a NEW I-9 prepared, non-reliant on the problematic SSN. If this becomes law, it will affect U.S. citizens far more broadly than illegal aliens, given the 80% accuracy of the government's database and the fact that the inefficiency goes across the board; the 12 million estimated illegal workers in the U.S. are a drop in the bucket, and USC and legal workers will be scrambling to prove their innocence, having been pronounced guilty by a very, very flawed recordkeeping system.

In effect, the employer has two choices in the current federal enforcement reality:

1. ferret out and terminate all illegal workers to avoid I-9 sanction and face charges of national-origin discrimination or
2. sit tight and face up to $11,000 in fines and UP TO SIX MONTHS IN JAIL FOR EACH UNAUTHORIZED WORKER!

That's you there, my good HR/Compliance/GC friends, potentially doing time.

But here is the bigger problem for the economy: those folks they rounded up at the chicken processing plants? They are there because very few Americans want to spend their days plucking and eviscerating poultry. Those guys with the hats and baskets in the Homestead tomato fields in the 95% Florida sun? They are there because despite the relative poverty of that city, Americans will NOT TAKE THE JOBS. Those Central American ladies smiling at you down the hall as they change the linen in another room?  They are there because the hotel can't find American workers to fill those positions.

So it's open season on employers and the USG is moving with a vengeance, all in response to the tragically flawed reasoning that Americans are losing jobs to foreign workers.  The enforcement threatens corporations as well as entire economic sectors...precisely at a time when food prices are racing out of control.

If you think our economy is in trouble now, wait till the repercussions of this mess reach consumers by early summer.  One lame duck and a complacent Congress pretty much guarantee chaos for the balance of this year...

A Short and Scary ICE Quote...

You read about the Pilgrim's pride raid, where Federal agents arrested more than 300 people as part of an identity theft investigation at Pilgrim's Pride plants in West Virginia and four other states.  According to ICE, agents had taken into custody 311 people by Thursday afternoon. Of those, 91 face criminal charges alleging false use of a Social Security number and document fraud. The rest face charges of immigration violations and were being processed for deportation.

THE KILLER QUOTE, From John Chakwin, Special Agent in charge of ICE's investigations in Dallas:

"We'll go wherever the evidence leads us, whether it's in the company or offsite the company.  We're still here. This is not the end."

Relying on E-Verify Alone: Playing Chicken with the Feds

Chances are you heard about the big Tyson raids of the past, but it appears that DHS appetite for chicken is bigger than we thought.  Consider the press release just issued (4/17/08)by Pilgrim's Pride Corporation, self-described as "the largest chicken company in the United States and Puerto Rico and the second-largest in Mexico."  The good folks at Pilgrim's Pride have steadily relied on the government's E-Verify system according to wha they say below, but it seems that their approximately 54,500 people made too tasty target for ICE to take that good faith reliance into consideration.  Read on and weep, Bewildered Compliance Colleague:

"Officials from the U.S. Department of Homeland Security's Immigration and Customs Enforcement (ICE) division took into custody a total of approximately 400 hourly, non-management employees at Pilgrim's Pride processing facilities in Batesville, Ark., Chattanooga, Tenn., Live Oak, Fla., Moorefield, W. Va. and Mt. Pleasant, Texas.

"According to the U.S. Attorney's Office, these individuals have engaged in immigration-related crimes, including aggravated identity theft, in order to fraudulently obtain employment with the company.

"No civil or criminal charges, including charges that Pilgrim's knowingly hired these employees or conspired to hire them, have been filed against the company in any of these cases. Pilgrim's Pride cooperated fully with ICE and the U.S. Attorney's office to help them apprehend these individuals. In fact, it was Pilgrim's Pride that uncovered the identity theft situation in Batesville and notified the federal government, and we worked closely with them to identify those individuals who were apprehended at the Batesville site.

"The approximately 400 employees taken into custody by ICE represent about 4% of the 9,400 people employed at these facilities. The company is working diligently to prevent or minimize any disruption in operations or service at these affected sites, and we are continuing to cooperate fully with the government in its investigation.

"We share the government's goal of eliminating the hiring or employment of unauthorized workers. We have terminated all of the employees who were taken into custody and will terminate any employee who is found to have engaged in similar misconduct. We are investigating these allegations further.

"All of Pilgrim's Pride's U.S. locations -- including those visited by ICE today -- voluntarily participate in E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program), which determines employment eligibility for all new hires.

"The E-Verify program, which is under the jurisdiction of the Department of Homeland Security, verifies the authenticity of the applicant's social security or alien number and personal information using an automated system that includes verification checks of Social Security Administration (SSA) and U.S. Citizenship and Immigration Services (USCIS) databases. However, as noted by Michael Chertoff, Secretary of the Department of Homeland Security, the E-Verify/Basic Pilot program cannot detect identity theft situations.

"Pilgrim's Pride has relied on the ICE Best Hiring Practices in designing its immigration compliance program. These practices include participation in E-Verify, prompt attention to Social Security No-Match letters, and retention of outside experts in immigration compliance to ensure that the company is doing all that it can to verify that its employees have work authorization. These practices also require that the company be sensitive to all applicable anti-discrimination laws.

"As a company, Pilgrim's Pride continually audits and reviews its processes and procedures to assure continuing compliance with best hiring practices and existing employment law. The company provides education and training on proper hiring procedures, fraudulent document detection, use of the E-Verify/Basic Pilot Employment Verification Program, and anti-discrimination procedures. Pilgrim's Pride also conducts internal and third-party audits of I-9 forms and hiring practices on an ongoing basis, and fully investigates any reports of alleged identity theft."

WOW!  Can you believe all that?  I won't editorialize further since I think they've said this as eloquently as it can be said.  The moral of the story:  good faith compliance doesn't stop ICE raids.  Only a comprehensive policing of workforce sensitive to IRCA, the Privacy Act AND state and federal employment verification requirements can keep this from happening to U.S. employers in this climate of reckless enforcement driven by politics.

Don't play chicken with ICE.  Write me or go to our i9 Advantage Home Page and let us get your great big coop in order ASAP.

Who's on first? States Laws Create Compliance Chaos

The Sunday Gazette Mail reported that despite the state-driven legislation to address the problem of unauthorized workers, things are slowing in state capitols this spring, with many propposals "watered down, delayed or outright defeated."  But amidst the debates, employer confusion continues to mount.

The article, an incisive piece written by Daniel C. Vock and published on April 13th, does a fine job of painting an overall picture on this important trend we here at i9 Advantage monitor on a daily basis.  (Believe me, keeping up with federal rules is a full-time job; trying to keep up with potentially 50 contradicting sets of state rules is a nightmare, but that's what we do!)

Mr. Vock reported that three states' "get-tough" proposals died in committee -- good news for Indiana, Kentucky, and Nebraska employers.  I won't get into the sheer absurdity of some of those proposals (e.g., shuttering business found to have unauthorized workers, etc.) but at least common sense prevailed.

A new Utah law, hammered out between the legislature and pro-employer Republican Gov. Jon Huntsman's won't take effect until 2009...a safe timeline given the fact that clear federal guidelines almost certainly will be imposed after the new President takes power.

Mississippi, of course, passed its legislation which takes away businesses licenses and state contracts for violators, but THEIR Republican Governor, Haley Barbour, is challenging the legislature to soften the rougher edges...talk about a state which CANNOT afford an exodus of employers...sheesh.

The article further reported on the hodge-podge of drivers' license-related legislation...still all over the place and, IMHO, as constitutionally flawed as the rest of this stuff.

According to Mr. Vock, "The year's legislative sessions are far from over, and immigration remains a hotly debated issue in numerous states where lawmakers are still meeting, including Alabama, Kansas, Missouri, Rhode Island and South Carolina. But even in those states, far- reaching proposals - from barring undocumented students from attending public universities in Missouri to mandatory identification cards for all Alabama workers - have run into trouble."

And get this quote:

"Last year, 46 states enacted 194 new immigration-related laws - triple the number from the previous year, according to a tally by the National Conference of State Legislatures. The group hasn't released numbers for 2008 yet."

And you wonder why employers are totally confused; even the largest industry leaders call us DAILY for clarification.   Listen up, Washington:  If a Fortune 500 employer with a team of 30 compliance attorneys can't figure out what you want, HOW ON EARTH do you expect the great mass of U.S. employers to comply?

Sadly, the article quotes the irrepressible Mark Krikorian, executive director for the "Center for Immigration Studies", a deceptively named organization known for its vehement, across-the-board anti-immigration agenda. The quote:

"If I were a state legislator, I'd probably be more aggressive. But I can't say this is some sort of surrender to illegal immigration."

If Mr. Kirkorian were more aggressive, this Cuban-American U.S. citizen would be chopping cane somewhere in Matanzas right about now...(-:  Xenophobia gussed up as border control never fooled me.

I'll keep you posted, but for now be glad that at least some states are starting to understand that fragmented efforts to control what is indeed a national issue will only add to the chaos employers already face in compliance.

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.