Among several suggested changes, AILA recommended that USCIS provide a disclaimer explaining that the information on I-9 Central “constitute[s] general advice but not legal counsel.”  I-9 Central provides simple instructions which often fail to provide the legal-nuanced details an employer “must carefully consider before deciding on the most suitable course of action.”  For example, the website mandates that “if a new employee provides a document that does not reasonably appear to be genuine, the employer must reject that document and ask for other documents that satisfy the requirements of Form I-9.”  However, the website does not address “complicated and competing obligations” with inter-agency policies or factors such as constructive knowledge of unauthorized workers or the basis upon which the employer suspects the document is fraudulent. Such details may also be necessary to comply not only with USCIS policies, but the policies of other agencies with a stake in workforce compliance (I-9s), i.e., U.S. Immigration and Customs Enforcement (USICE), Office of Special Counsel (OSC), Social Security Administration (SSA), or even a U.S. attorney.  It is always recommended that an employer consult with an immigration attorney with knowledge of workforce compliance issues regarding I-9 Forms and workforce compliance when questions arise regarding internal procedures relevant to workforce compliance or even correcting clerical errors on I-9 Forms.

While not currently clarified on I-9 Central, USCIS confirmed recently that the “controlling document with regard to USCIS’s position and guidance for completion of the Form I-9 is the M-274 Handbook for Employers,” not the I-9 Central website or any other publically available materials on the subject.  Therefore I-9 Central is only guidance, but not an authority on the completion and maintenance of the Form I-9.  AILA suggested that USCIS emphasize this point in a “prominent notice” on the website and, perhaps, duplicate the exact language in the handbook with the corresponding information on each page of the website.

In addition, I-9 Central provides notice of updates and changes to the form and handbook through the “What’s New” link on the website.  However, the What’s New webpage does not highlight the specific changes within the referenced documents.  AILA suggested that USCIS underscore the specific changes to save employers the time and frustration of comparing previous versions of the form or handbook with the updated or changed material.  Further, the association suggested providing a history of previously published material which would be available for employers to confirm compliance with the rules and procedures at the time a form was completed, especially when faced with a government audit.  AILA also suggested that USCIS provide an option for employers to receive email alerts regarding changes to the website and material.

AILA also pointed out that some of the information on the website relevant to other agencies with a stake in workforce compliance, such as SSA or OSC, is inconsistent with ”pronouncements” from those other agencies.  AILA suggested that USCIS provide confirmation on the site that such information has been “vetted” by the relevant agency.

The senators claim that “the L-1B visa program allows companies to transfer employees with ‘specialized knowledge’ from their foreign facilities to their U.S. offices for up to seven years.” (emphasis added).  This is incorrect.  The L-1B visa program per the regulations only allows a U.S. enterprise to transfer an employee with specialized knowledge from a foreign affiliated enterprise for up to five years, not seven.  Initially, an L-1B visa may be valid up to three years, and may then be extended, depending on the needs of the company, for up to 2 years in addition.  However, a transferee may not extend her L-1B beyond five years.  The transferee would have to remain outside of the United States for at least one year before she could reapply for L-1B status, with some exceptions for “intermittent” employees.

The regulations for the L-1 visa program also include an L-1A visa available for managers, executives, and foreign nationals coming to the US to set up a new office.  An employee of a foreign affiliate with an established office in the United States may receive an L-1A visa valid initially for up to three years.  He may later extend the L-1A status in two year increments for up to seven years.  A foreign national with an established enterprise outside of the United States may receive an L-1A visa valid initially for up to one year to organize an affiliate operation in the United States.  If certain requisites are met, the L-1A for a new office may be extended in two year increments up to seven years.  However, similar to the L-1B, once a foreign national manager reaches the maximum of seven years, he must remain outside of the United States for at least one year before reapplying to return to the United States in L-1A status.

In limited cases, an employee who entered in L-1B status may be able to change to L-1A status, and therefore may be eligible to remain in the U.S. for up to seven years, but only if the change of status to L-1A is approved.  The petitioner must provide evidence that the L-1B transferee gained at least six months of experience in a management position prior to filing the change of status petition.  However, certain limitations apply to an L-1B changing status to an L-1A.  For example, a manager or executive who enters the U.S. initially in L-1A status may be eligible to adjust his status to permanent residence without the employer filing an alien labor certification with the Department of Labor, as a “multinational manager.”  However, the L-1A manager or executive must demonstrate at least one year of experience in a management position with the foreign affiliate of the U.S. enterprise prior to his initial admission in L-1A status in order to adjust status as a multinational manager.  If the L-1B transferee turned L-1A manager only gained experience in a management role while working in the United States, he is not eligible to apply for permanent residence without the employer first filing an alien labor certification.

 The ASSET bill, originally introduced during the 2011 session, outlines a third possible tuition rate for students applying to Colorado funded higher education institutions.  Currently, a student either qualifies for in-state or out-of-state tuition rates depending on domicile.  However, per section 505 of the Illegal Immigration Reform and Immigrant Reform Act of 1996 (IIRIRA), an undocumented alien “shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less amount, duration, and scope) without regard to whether the citizen or national is such a resident.”  The ASSET bill states that students who are eligible for the proposed standard-rate tuition “shall not be counted as a resident, and the tuition classification shall not be deemed to establish residency or domicile for any purpose.”  If passed, Colorado would become one of fourteen states who have passed similar tuition bills for undocumented students.

The “standard-rate” tuition, according to SB 12-015, equals the student’s share of the post-secondary institution’s in-state tuition amount plus “the college opportunity fund stipend” usually awarded to in-state students.  A qualifying student would, therefore, pay a higher rate than in-state tuition, but a lower rate than out-of-state tuition.  Standard-rate students would also remain unqualified for state or federally funded, need-based financial aid.

Similar laws in other states have recently been challenged alleging violations of section 505 of IIRIRA and the Equal Protection Clause.  California passed a bill that mirrors the Colorado ASSET bill in 2001, which provided an “exemption” to undocumented students to qualify for in-state tuition.  In 2010, the California Supreme Court held that because “residency” was not a requirement to qualify for the in-state tuition exemption, the exemption did not violate IIRIRA.  In Kansas, out-of-state students claimed that offering lower-rate tuition to undocumented students not only violated IIRIRA, but also the Equal Protection Clause.  The Kansas court ultimately dismissed both claims, plus five other claims in the suit, for lack of standing and held the students did not have a private right of action to claim a violation under IIRIRA.

Many immigrants subject themselves to the immigration process to finally arrive to the day when they can take an oath of citizenship and be done with dealing with immigration agencies.  However, the New York Times recently reported on several incidents where Immigration and Customs Enforcement detained naturalized and United States born U.S. citizens and initiated removal proceedings against them.  Although exact figures are not available, one study documented at least 82 cases between 2006 and 2008.  Part of the blame for these incidents can be placed on Secure Communities, the Department of Homeland Security program that allows local law enforcement agencies to verify immigration status.  The Secure Communities database is not always accurate.  The Department of Homeland Security fingerprints immigrants at every step of the immigration process eventually leading to citizenship and does the same for people it is trying to remove from the country.  Thus, the Department of Homeland Security presumably has the fingerprints of all naturalized U.S. citizens.  However, fingerprints are being matched with inaccurate data, causing the unauthorized detention of naturalized U.S. citizens without a realization that these persons are indeed U.S. citizens.  Advocacy to abandon or restrict Secure Communities for this and the many other reasons the program is flawed is important.  However, in the meantime, maybe carrying one of those laminated passport cards would not be such a bad idea.

See NY Times article on U.S. citizens being detained for removal:

http://www.nytimes.com/2011/12/14/us/measures-to-capture-illegal-aliens-nab-citizens.html?_r=1&ref=immigrationandcustomsenforcementus

During the waiting period, students should review all of their forms and information and then meet with their school’s designated school official (DSO) or sponsor’s responsible officer (RO) or alternate responsible officer (ARO) to correct or update information in the Student and Exchange Visitor Information System (SEVIS) and “place your record in Active status.”  Students and exchange visitors should wait at least 2 federal business days for SEVIS to universally update their status.  ICE also recommends that students or exchange visitors consult with their DSO or RO/ARO regarding requirements relevant to their status to apply for a driver’s license in their respective state and/or Social Security Number (SSN), if applicable.

Not all students qualify for an SSN.  Generally students will only qualify for an SSN, if the school has granted them the authority to work.  The SSA will not issue an SSN for the sole purpose of enrolling or registering with a school.  An F-1 Student must present a letter of employment and an annotated Form I-20 authorizing the student for work.  Foreign nationals in J status should consult with their RO/ARO on whether a letter of employment is necessary to obtain a social security number.

Each State DMV may vary on the documentation necessary to obtain a driver’s license.  Most states will require a foreign national in F, M, or J status to present the following: (1) Form I-20 or Form DS-2019; (2) Form I-94 Arrival Departure Record; (3) Passport (with visa, if applicable); and (4) proof of legal presence or residence.  The Colorado DMV follows the general rule outlined in the ICE memo and requires documentation that “proves identity, age, name, and lawful presence in the United States.”

The ICE memo also provides the following links for additional information:

Driving in the United States:  http://studyinthestates.dhs.gov/students/resources/driving/

Obtaining a Social Security Number (SSN): http://studyinthestates.dhs.gov/students/resources/social-security-number/

DMV Fact Sheet: http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf

See NY Times article on the economic controversies of NAFTA: http://www.nytimes.com/2009/03/24/business/worldbusiness/24peso.html?ref=northamericanfreetradeagreement

See U.S. Department of State website on TN visas: http://travel.state.gov/visa/temp/types/types_1274.html

This leaves many employers with jobs but no candidates to fill them.  Understandably, this is a conundrum in an economy where so many are looking for work, but in Silicon Valley, the need for well educated, qualified individuals is greater than the supply of current United States workers.  In an effort to work around this issue, a company called Blueseed, founded by entrepreneur Max Marty, has come up with the idea to develop a floating city to house individuals to perform work for Silicon Valley businesses in the United States (such as writing code) without actually doing the work in the United States.

The idea is part ingenuity and part gamble.  Blueseed hopes to anchor a ship twelve miles off the coast of California, in international water.  Staff and crew it with U.S. Workers and house on it foreign national entrepreneurs.  In return they will offer regular trips to the mainland for the foreign nationals to enter the United States on a B-1 Visitor for Business visa to attend meetings, conferences and perhaps even training seminars.  This may offer a service to Silicon Valley businesses that was never possible before.

All that said, is this possible?  Obtaining a visitor visa is not exactly easy, especially from countries with high volume of immigration into the United States.  One must prove substantial ties to their home country as well as the intent to return after international travel.  A big hurdle when you’re living in a ship twelve miles of the shores of the United States.  Additionally, applicants for admission into the United States must prove they are intending to return home each and every time they enter, so there will be a bit of a gamble from the get go.  The idea is a good one, but logistically there is a lot to work out, the developers at Blueseed are not only aware, but ready for the challenge.

http://arstechnica.com/tech-policy/news/2011/11/startup-hopes-to-hack-the-immigration-system-with-a-floating-incubator.ars

Apple growers attempted to recruit pickers from other sources.  Many posted “help wanted” signs, negotiated with neighbors to share the available labor, or paid the high cost of hiring prison inmates to bring in the harvest.  However, the effort was not enough for the orchards to harvest all the apples before the elements rendered the fruit inedible.

We previously witnessed this phenomenon in Colorado.  When Colorado enacted the Colorado Employment Verification Law (Colo. Rev. Stat. § 8-2-122), farmers in Colorado experienced a similar reduction in work force, because migrants were deterred from assisting with the 2007 harvest.  Colorado farmers resorted to the same recruitment tactics as the Washington orchards, with the same results: Not enough labor force to harvest crops leading to a less productive harvest.

Four years later, the country is experiencing an average unemployment of 9%, a reduction in the undocumented alien population, and people are still blaming “illegal” aliens for taking American jobs.  I am not suggesting that every unemployed American should suck it up and apply to pick apples in Washington State.  However, before blaming the “others” for our unemployment rate, we should consider what “American jobs” the others have really taken from us.  State or federal laws passed to deter employers from hiring undocumented aliens historically only affect the availability of blue collar or agricultural jobs – lower paying jobs that entail manual labor.  These are the positions most likely filled by undocumented aliens.  Undocumented aliens are less likely to be hired for higher end positions, which may require background checks, licenses, references, or academic credentials; which leaves the supply of higher paid or professional positions to the natural ebbs and flow of the United States economy.

The Immigration Act of 1990 imposed a cap of 65,000 annually for H-1B temporary workers.  Except for a temporary increase between fiscal years 1999 and 2003, the cap has remained the same while the US economy has continued to fluctuate to the extremes.  An H-1B visa requires that the worker have earned a bachelor’s degree or higher, or an acceptable equivalent, and the position usually requires a bachelor’s degree or higher.  During the tech boom of the 1990s, I worked for a software consulting company.  The company could not hire consultants fast enough.  The demand was so much higher than the supply that one year the company offered to train any administrative staff member, including accountants, human resources staff, receptionists, and legal staff, who wanted to become a consultant.  The company recruited from all over the world, starting in Europe, then Africa, South America, Asia, depleting resources and then moving on to the next continent.

The software consulting firms were driving forces behind the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the 21^st Century Act (AC21).  Each year during the tech boom, the government reached the 65,000 cap earlier and earlier.  ACWIA increased the H-1B cap to 115,000 for fiscal years 1999 and 2000 and AC21 gradually increased the H-1B cap to 195,000 in 2002 in response to the high demand.

The cap returned to 65,000 in fiscal year 2004.  The demand continued, but at a more stable pace.  Annually, the cap would continue to be reached before the new fiscal year began.

After only a short downturn in the early 2000s, the economy peaked in 2008, on the wave of the financial and housing bubbles.  On April 1, 2008, USCIS received over 120,000 petitions for the 2009 fiscal year H-1B cap.  The number of petitions sent to the Vermont Service Center jammed FedEx deliveries so much that FedEx was unable to issue individual receipts for filings.  Instead, FedEx could only assure petitioners that their H-1B petition had been delivered on April 1, 2008, in a bulk delivery.  It was the first time that not one petitioner could be guaranteed processing if she filed on April 1, 2008.  USCIS had to administer a lottery.  Ironically, the economic bubble burst in September 2008, just before these H-1B visas were valid on October 1, 2008.

Since the recession began in 2008, the government receives less and less H-1B petitions each year.  In 2009, the FY2010 cap was not reached until August 2009.  In 2010, the FY2011 cap was not reached until December.  And in 2011, H-1B visas for FY2012 were still available until November 2011.

Most US employers, in my experience, are about the bottom line.  If the same talent is available in the United States that is available outside of the United States, then an employer will hire the US worker which does not come with an additional $2000 price tag for hiring.  Employers, generally, will not hire outside of the United States if a supply of US workers is available on demand.  When US workers are not available, qualified, or willing to apply for the position, then employers start “exporting” American jobs.  When neither foreign nor domestic labor is available, then apples rot in the orchards.

Judges in New York City and the surrounding suburbs were surveyed for a recent study published by the Cardozo Law Review.  The study found that 67 percent of immigrants who were represented by attorneys in immigration proceedings were deemed to have had successful outcomes in their cases.  On the other hand, only 8 percent of those who appeared without lawyers had successful outcomes.

For people facing deportation from the United States and potential permanent separation from their homes and families, the ability to be represented is of utmost importance.  But merely having an attorney does not guarantee competent or adequate representation.  The study also found that many private attorneys are providing inadequate representation to those facing deportation.  In the New York area surveyed for the study, many attorneys were seen to be predatory and not familiar with immigration law.  The immigrants who hire them can be more vulnerable to ineffective representation by counsel because many do not speak English and are unfamiliar with the court system.

While it is unclear whether the access to representation and frequent problems with quality of representation apply equally in other immigration courts outside of New York, it is undoubtedly true that there is a need for better access to quality representation around the country and here in Colorado.  Until that happens, those who are seeking legal representation for deportation defense would be wise to research their prospective attorney’s experience with different types of cases in immigration court before retaining them.

Link to Cardozo Law Review Report: http://www.cardozolawreview.com/content/denovo/NYIRS_Report.pdf

Link to New York Times Article: http://www.nytimes.com/2011/12/19/nyregion/judges-give-low-marks-to-lawyers-in-immigration-cases.html?scp=2&sq=immigration%20lawyers&st=cse

Clearly, immigrants benefit and strengthen the U.S. economy, and the report indicated that it makes sense for the United States to pursue immigration reform policies to encourage economic growth.

After reading statistics like this, it is difficult to understand where proponents of anti-immigrant legislation find their support.  By founding and co-founding U.S. companies, these entrepreneurial immigrants in turn create jobs for U.S. citizens.  Indeed, the report revealed that successful immigrant entrepreneurs often partner with U.S. citizens to create new businesses and to provide services.

Read more about the report here: http://www.immigrationdirect.com/immigration-news/us-visas/immigrant-led-ventures-driving-job-growth-innovation/index.html.