E-Verify & Comprehensive Immigration Reform

Another new component to immigration reform Senate Bill 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act”, is coming out of the woodwork. The new legislation calls for an extended, nationwide computer network of driver’s license photographs and biographic information of US citizens, run by DHS’s USCIS.

Seven percent of US employers use a similar network, the DHS-run system E-Verify, which helps USCIS to validate identity and legal status of new hires. The broadened network comes from the need to further prevent fraud during the hiring process, by allowing employers to re-verify any photographic or biographic identification presented by new workers. The system would ultimately make it more difficult for illegal immigrants to secure jobs in the US.

E-Verify isn’t mandatory in all states: those US employers who utilize the system, do so voluntarily. If the new immigration bill passes, then E-Verify will have to undergo significant expansions, obligating all employers to send new employee — both foreigners and citizens — information to the system, in order to prove work eligibility.

Many fear that a nationwide computer network will be akin to a national ID system, allowing the government to keep tabs on its citizens. Another fear is that an expanded system would be available to other federal agencies, such as TSA or FBI, which would mainly use it to find suspects.

The federal government assures us that E-Verify doesn’t maintain its own information — it instead taps into other systems to establish information; the information vanishes once the task is accomplished. However, privacy guidelines released by DHS affirm that E-Verify can, depending on the situation, “give law enforcement agencies extracts of information on potential fraud, discrimination or other illegal activities, which points to information gathering at some level and analysis of identity data.”

If passed, the Senate bill will present grants to the states that give DHS access to their driver’s license photo records, clarifying that such access wouldn’t breach federal privacy law. Mississippi is the only state that has given DHS admission to its motor vehicle database, but only for biographic information and not photographs.

The Senate bill does not directly forbid DHS, or any other government agency, from using the information for anything other than work authorization, unlike the law that administers the census.

The Takeaway

E-verify is very likely to become mandatory for all employers, as it is supported by The Chamber of Commerce and employers. The issue of misuse of sensitive and private  information has been enhanced by the leaks of NSA surveillance methods; clearly these dangers need to be balanced with the needs for a workplace security.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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The New “Hardship” Filing Rule in Immigration Law

Earlier in January, Secretary of Homeland Security Janet Napolitano announced that on 4 March 2013, USCIS‘s new family unity waiver process will go into effect. The new process will decrease the amount of time US citizens are apart from their immediate relatives — spouse, children and parents — who are in the process of acquiring visas for lawful permanent residency in the US. Particular individuals can fill out a form, called a provisional unlawful presence waiver, before leaving the US and interviewing in their home country.

Final Rule

“This final rule facilitates the legal immigration process and reduces the amount of time that US citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

Current Law

Current law is much different. According to current law, a US citizen’s immediate relatives, who cannot adjust their status to become US lawful permanent residents, must depart the US and acquire an immigrant visa in their country of origin. Those who have unlawfully been in the US for more than six months must obtain a waiver that overlooks their unlawful status and overstay before the can return to the US after going to their home country to appear at  US Embassy or Consulate to be approved for an immigrant visa.  This has  meant that if the waiver was denied by the Consulate abroad, the relative was not allowed to re-enter the United States to be re-united with their family.  A great many people were therefore understandably reluctant to avail themselves of this benefit without a decent chance of a favorable outcome.

Qualifying for a Waiver

In order to qualify for a provisional unlawful presence waiver, the applicant must be an immediate relative of a US citizen, inadmissible only on account of unlawful presence and show that a rejected waiver will end in “hardship” for the applicant’s US citizen relative.  The grounds of waiver remain the same.  The wait time is reduced because the waiver is adjudicated by USICS in the United States and therefore the wait time outside the US is reduced.

The New Process

The new process will have a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver. Individuals who apply under the new waiver must inform the DOS’s National Visa Center before filing.

The Takeaway

The new waiver process will allow eligible applicants to remain in the US while anticipating the outcome of their application. No more waiting in Ciudad Juarez, where local dangers await the unwary; where being found inadmissible means that families have to make the choice to leave the US, and cannot re-unite with a spouse or parent.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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How DACA Affects Employers

As of today, USCIS has received 298,834 applications for Deferred Action for Childhood Arrivals (DACA) eligibility. Of these, 53,273 have been approved; workers who have been approved will either seek new employment or continue with past employment. My previous blog post from mid-October discussed how employers could unintentionally admit to ‘knowingly’ hiring unauthorized workers who apply for DACA.

DACA allows illegal immigrants, who meet certain guidelines, to remain in the US. Individuals who receive approval, also receive USCIS-issue work authorization cards called Employment Authorization Document (EAD) to demonstrate eligibility to work in the US for US employers.

Under current law, employers must keep a Form I-9 for all hired employees, both citizens and non-citizens, who are engaged to work in the US. USCIS has now issued specific guidance for employers about treatment of DACA recipients’ EAD cards, and procedures to record and process their Forms I-9 for these employees.

Hiring new Employees with EAD cards issued under DACA

In order to properly complete a Form I-9, certain documentation is required to prove both identity and employment authorization; under List A, an unexpired EAD is an acceptable document for Form I-9 completion.

The DACA EAD provides proof that an employee has been allowed to stay in the US and has been authorized to work, but has no legal status. The employer can enter EAD information in Section 2 under List A since an EAD card provides both proof of identity and work authorization. The EAD alone provides I-9 proof of the employee’s ability to work in the US; if the employer is presented with an EAD, he or she may not ask for additional documents. When an EAD expires, the employer must reverify that the employee still has work authorization in Section 3 of Form I-9.

Guidance for Processing Existing Employees

Employers who collect updated documentation from employees should examine the employee’s previously completed Form I-9 to decide whether a new Form I-9 should be completed for that employee, or decide to only complete Section 3 of the original Form I-9.

Employers should complete a new Form I-9, write the original hire date in Section 2 and attach the new I-9 to the old I-9 if any of the following changes from Section 1 of the previously completed I-9:

  • employee’s name
  • date of birth
  • attestation
  • social security number (if one was provided)

Employers should only complete Section 3 of the previously completed I-9 if:

  • information from Section 1 hasn’t changed or if
  • the employee provides a new EAD

The employer should examine the documentation for authenticity; and, if provided, record the document title, number and expiration date. Employers should also sign and date Section 3.

Guidance on E-Verify

If the employer must complete a new Form I-9, and uses E-Verify, then the employer should confirm the new I-9 information through E-Verify. If the employer only has to complete Section 3 of I-9, then an E-Verify check is not required.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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Employers Could Admit to ‘Knowingly’ Hiring

Young immigrants applying to Deferred Action for Childhood Arrivals (DACA) must prove that they have lived in the US for at least five years, and one way to obtain evidence is to ask employers to supply proof of job status. However, employers who consent might also be admitting that they ‘knowingly’ hired an unauthorized worker, which violates federal law.

Low Figures

There are an estimated 1.2 million young immigrants who are eligible for DACA, but since Aug. 15, when US Citizenship and Immigration Services (USCIS) began accepting applications, the Department of Homeland Security (DHS) has only received over 82,000 applications. Figures are lower than predicted, partly because of unforeseen drawbacks in DACA guidelines.

If young immigrants receive eligibility for DACA, they receive deferred action and legal work permits; but they do not receive legal immigration status. While DACA does not lead to a ‘green card’, in most states, applicants are eligible for a driver’s license, a huge benefit.

‘Knowingly’ Hiring and New DACA Guidelines

In order to be eligible, young immigrants must be enrolled in school or have a high school diploma, which may present a dilemma for employers and applicants alike. Many employers rely on low-wage labor in order to run their businesses, and many employees are young immigrants who must work in order to pay for university, or who were forced to drop out because they couldn’t afford university costs. It is estimated that 740,000 working immigrants are eligible for DACA.

USCIS, a division of DHS, made addendums to the DACA guidelines, confirming that employers can help verify DACA applicants. Evidence of knowingly hiring unauthorized workers will not be revealed, “unless there is evidence of egregious violations of criminal statutes or widespread abuses,” the guidelines state. All DHS enforcement resources are being directed towards threats on public safety.  However, the term ‘egregious violations’, has not been defined in the guidance.

DACA guidelines ask applicants to provide any Social Security numbers (SSN) they have previously used. Falsification of SSNs, whether they are fake numbers or real numbers belonging to someone else, is a common occurrence and can be seen as evidence of fraud or identity theft. However, the new guidelines state that the form is only inquiring about numbers, “that were officially issued to you by the Social Security Administration.”  Hence no disclosure of social security numbers is required if the number was not specifically applied for by the applicant. This is a huge relief for E-verify employers, who may reduce the possibility of facing social security mismatches and tentative non-confirmation messages from the Social Security Administration.

The bottom line is that no DACA applicant will be given immunity, but DHS is not interested in using the application as a means to discover individuals who may have abused federal law in an employee-employer relationship.

(NYTimes, “Deportation Deferrals Put Employers of Immigrants in a Bind”, 9/26/2012)

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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DHS Enforcement Actions — July 2012

On July 19, Department of Homeland Security’s (DHS) Secretary Janet Napolitano spoke before the House Judiciary Committee, offering important information on how US immigration law enforcement would affect employers.

US Immigration and Customs Enforcement

Since January 2009, ICE has audited 8,079 employers who are suspected of “knowingly hiring” workers who do not have authorization to work in the US. The federal government has also debarred 726 companies and individuals from federal contracts; imposing and collecting more than $87.9 million in fines and sanctions against companies and their officers.

Sec. Napolitano said ICE will eliminate high-profile raids on worksites because such raids do little to improve public safety. The government now feels that deportation of criminal aliens and unauthorized workers is having little affect on employers’ willingness to hire these individuals. Instead, the government will renew and focus its efforts on Form I-9 inspections; civil fines; debarment; and employer education and compliance with current law.

USCIS, ICE and the Office of Special Counsel (OSC) have greatly increased their engagement with employers and the public through national and local stake holder meetings, webinars and newsletters. Self-check through E-Verify is also encouraged for individual employees. There are now 385,000 companies participating in E-Verify with more than 1.1 million hiring sites. E-Verify is also developing a robust customer service hotline; and increasing outreach staff to promote the E-Verify’s benefits, and educate employers and employees about rights and responsibilities.

Federal agencies receive information to prosecute employers through local police enforcement; traffic stops; criminal prosecutions and informers; and through employee complaints to ICE hotlines and OSC online complaint forms.

The Obama Administration is refocusing efforts on worksite compliance and arrests of unauthorized and criminal aliens, and deporting these aliens at great cost to their countries of origin.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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Obama Administration to Stop Deportation of some Children of Illegal Immigrants

Immigrants May No Longer Live in Fear

Approximately 800,000 immigrants will not live in fear of deportation due to an Obama Administration policy change, which states that the US will no longer deport young law abiding illegal immigrants who have been in the US for at least five years.

Conditions to Be Met Before You Apply

Janet Napolitano, the Secretary of Homeland Security, affirmed this policy change. DHS’s new directive states that if a young illegal immigrant does not pose a threat to national security or public safety, and meets certain criteria, then s/he will be eligible to receive deferred action from deportation.

DHS’s new directive mandates that individuals must meet the following conditions in order to qualify for deferred action:

1. Came to the United States under the age of sixteen;
2. Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
5. Are not above the age of thirty.

Illegal immigrants who meet this criteria will have legal status for two years in the US, but will have to reapply every two years. They will also be able to apply for work authorization. However, this is not a direct pathway to citizenship or permanent residency.

Caveat Emptor

One of the dangers lurking in the shadows is the fact that applicants may have to disclose not only their own names but names of family members, who may be ineligible for any immigrant benefits because of their lack of status in the US. The danger is that once these relatives and family members have been disclosed, they can be deported or charged with crimes for which they have not yet been charged or arrested by law enforcement.

Significant Misdemeanor

A significant misdemeanor is either punishable by less than a year in prison or no imprisonment. Significant misdemeanors include violence, threats or assault, specifically domestic violence; sexual abuse or exploitation; burglary, larceny or fraud; driving under the influence of alcohol or drugs; obstruction of justice or bribery; unlawful flight from arrest, prosecution or the scene of an accident; unlawful or use of a firearm; drug distribution or trafficking; or unlawful possession of drugs.

Individuals convicted of three or more other misdemeanors, not committed on the same day or arising out of the same act, are not eligible for deferred action. This means that if the individual has not committed a significant misdemeanor listed above, but has been convicted of three “simple” misdemeanors not on the same day — can be three different days or three different incidents –can be similarly ineligible for deferred action under the new process.

Individuals will have to jump through several hoops in order to qualify for an EAD under deferred action.

DUIs are becoming a more significant crime that USCIS is targeting as a disqualification for immigration benefits.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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ICE Targets F-1 Visa Violators

ICE targets visa violators:

Forty immigration status violators, visa overstays and foreign students were arrested by special agents with US. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI). These violators disobeyed the conditions of their nonimmigrant visas during a 12-day operation that ended Friday, June 1.

Immigration Status Reviewed

Twenty-one men and 19 women were arrested by HSI’s Counterterrorism and Criminal Exploitation Unit (CTCEU), part of a national program designed to prevent terrorists and other criminals from exploiting the nation’s immigration system. In addition, CTCEU reviews the immigration statuses of known and suspected terrorists; combats criminal exploitation of the student and exchange visitor visa program; and leverages HSI’s investigative expertise to identify national security threats.

Countries Targeted for Removal for Overstay and Visa Violations

Those arrested are from the following 17 countries: Saudi Arabia(1), Yemen(1), Kenya(15), Azerbaijan(1), Zimbabwe(1), Zambia(1), Nepal(2), Nigeria(4), Gambia(2), Cameroon(3), Grenada(2), Thailand(1), Spain(1), Jamaica(1), Dominican Republic(1), Mexico(2), and Antigua and Barbuda(1).

The 40 arrested were encountered in Edmond, OK, and the following 12 north Texas Cities: Wichita Falls, Tyler, Lubbock, Amarillo, Abilene, Arlington, Prosper, Irving, Dallas, Plano, Carrollton And Mansfield. All have been processed for immigration removal proceedings.

Grounds for Removal

In addition to their immigration violations, three of those arrested falsely claimed US citizenship, which is a felony and results in being permanently barred from legally re-entering the US. A Mexican national was also arrested and charged for illegally re-entering the US after having been previously deported twice.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

Any information here is not meant as legal advice, but strictly educational.

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