Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

Hey Georgia, E-Verify is coming—Be ready!


          Employment Eligibility Verification or E-Verify is an internet-based US government controlled system to help employers verify the employment eligibility of new hires.  The E-Verification program works in conjunction with the current I-9 forms that must be completed for every new hire. 

YOUR OBLIGATIONS UNDER GEORGIA LAW
           Congress is considering legislation that would mandate E-Verification participation nationwide and may expand the program to an employer’s current employees (E-Verification prohibits the use of the program on current employees).  We will know more about this movement after the Presidential election.  

The Georgia Legislature, in a fit of anti-immigration vitriol, jumped on the E-Verify bandwagon in 2011.  Though many larger employers in Georgia have already been subject to the new law (those with MORE than 100 employees) smaller, private employers in the state of Georgia with 11-99 employees must enroll in E-Verify and begin using the program on or before July 1, 2013.  Private employers with 10 or fewer employees are exempt from this law (for now). This marks the final phase for employers to enroll and use E-Verify as part of Georgia’s Illegal Immigration Reform and Enforcement Act of 2011

BACKGROUND
The Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRIRA”) mandated that the Department of Homeland Security (“DHS”) and US Citizenship and Immigration Services (“USCIS”) in partnership with the Social Security Administration (“SSA”) develop a system for employees to verify the employment eligibility of new hires.  The program currently has over 23,000 participating employers. 
In response to the Congressional mandate, the Department of Homeland Security, US Citizenship and Immigration Services, and the Social Security Administration developed an internet-based system that is available in all 50 states and currently free for employers to use.  Participation is voluntary from a Federal perspective; however, many states, including Georgia, now require compliance from many employers across the state.
USCIS claims that the E-Verification program will accomplish the following goals:
·         Reduce unauthorized employment (identity theft however remains a problem in that the system does not preclude individuals who use the identity of others)
·         Virtually eliminate Social Security No Matches
·         Minimize verification-related discrimination (although a disproportionate number of new hires who are subjected to tentative non-confirmations are foreign born)
·         Protect civil liberties and employer privacy
·         Be quick and non-burdensome
·         Rely on secure documents
HOW IT WORKS
         When an employer decides to participate in the E-Verification program, they must sign a Memorandum of Understanding (“MOU”) with USCIS.  The MOU sets forth the rights and obligations of the employer, DHS, and SSA.  For instance, by participating in the program, the employer gives DHS and SSA the authority to make periodic visits to the work site to review the E-Verify records.  Also, if an employer fails to notify DHS that an employee is still on payroll after final non-confirmation, the employer may be fined.  The employer can rescind the MOU upon giving a 30-day notice.
            After the MOU is signed by the employer, DHS, and SSA, the employer sets up user accounts for the on-line system.  The employer’s representatives must participate in an on-line tutorial and pass an on-line test prior to using the system.
            Once an employee is hired with a company participating with E-Verification, the company must verify the employment eligibility of the new hire within three (“3”) days.  The company must submit every new hire to E-Verification.   The company is prohibited from using E-Verification on current employees.
            The authorized company representative logs into the E-Verification system and submits the new hires name and Social Security Number.  The new hire must have a Social Security Number.  Many international hires, though authorized to work immediately, may not have a social security number.  USCIS allows such hires additional time to obtain Social Security Numbers so that they may be run through E-Verification.
            The E-Verification program checks the information provided and responds within a few seconds.  The system returns either an:
·         “Employment Authorized” response, indicating the employee is authorized to work or a
·         “SSA Tentative Non-Confirmation” response, indicating that there is an information mismatch with SSA (this is a common response to naturalized US Citizens)
·         “DHS Verification In-Process” response, indicating there is an information mismatch with DHS (this is a common response with international students or international employees switching employers)
The employer records the system generated verification number on the I-9 Form, or can attach a printout with the verification number to the Form I-9 as a record of verification.  If the response is other than “Employment Authorized”, the employee has 10 days to contact either DHS or SSA depending upon the non-confirmation to resolve the information mismatch.  If the new employee does not contest a Tentative Non-confirmation response, then it is considered to be a Final Non-confirmation and the employment may be terminated.
E-VERIFICATION ADVANTAGES
            E-Verification’s goal is to help employers hire only employees authorized to work.  For the vast majority of cases, E-Verification is quick and easy.  Also, for employers with higher percentage of undocumented workers or who experience much use of fraudulent documents, E-Verification saves companies time by weeding out those unauthorized workers before SSA sends “No Match” letters to the company. 
            E-Verification provides an employer with a safe-harbor in its hiring practices.  When employers submit all new employees to the E-Verification program, the employer obtains a “rebuttable presumption defense” that the employer did not “knowingly or intentionally” hire unauthorized workers.

E-VERIFICATION DISADVANTAGES
            Participation in the program raises privacy and discrimination concerns for employees.  The I-9 forms that are completed by the employer for each new hire do not require disclosure of a Social Security Number, instead a Social Security Card is but one form of many that a new employee may present for the I-9.  However, the E-Verification program can only work with Social Security Numbers.  The I-9 form specifically does not require certain documents to avoid potential disclosure of the numbers and to prevent discrimination.  E-Verification essentially wipes away this protection by requiring the Social Security Number. 
            E-Verification disproportionately targets foreign nationals.  Native born US Citizens with Social Security Numbers are employment authorized 99% of the time.  Naturalized US Citizens, Permanent Residents, and other foreign nationals authorized to work tend to receive a much higher percentage of Tentative Non-Confirmations.  Those who receive Tentative Non-Confirmations must then resolve the Tentative Non-Confirmations with either SSA or DHS or possibly both.  Those with Tentative Non-confirmations create greater paperwork problems for the employers and thus may create discrimination when employers find it easier to avoid new hires with potential Tentative Non-Confirmation issues.
SUMMARY

         Employers can use E-Verification as an effective tool for employers to help ensure the employment eligibility of new hires and can provide a beneficial “safe harbor” if it later turns out that a new hire was in fact not eligible to work.  The program still has many false “Tentative Non-Confirmations” for naturalized US Citizens and foreign born employees changing employers which can be cumbersome for both the employer and

         Employers wishing to participate in E-Verification can register online by visiting:  https://www.vis-dhs.com/employerregistration.

If you would like further information about specific case scenarios or situations, please call our office at 404.816.8611, or e-mail us at ckuck@immigration.net to speak to one of our experienced immigration attorneys.

October - A Great Month for Clients


by Danielle Conley, Partner

It is safe to say that although October has been quite a busy month in Immigration Court, it has been well worth it!  Just today, I won my sixth of six merit hearings on behalf of six different individuals and their families who now have the privilege of remaining together in the United States!
    
It all started on October 2, 2012, when the Atlanta Immigration Court correctly found that a mother and son who were both in removal proceedings were each in their own right entitled to green cards in the United States as a result of the impact that their loss would have had on the mother’s two teenage daughters.  Her eldest son became the man of the family after they were devastated by the deportation of their father in 2008, and the judge simply could not bear the thought of the emotional impact on the two girls if they then lost their mother and brother after everything they have already been through.
                  
On October 4, 2012, my client had his day in court where he too was requesting a green card and permission to remain in the U.S. after being here for 20 years of his life.  Once again, the Immigration Judge recognized where justice was due in the case of a man who was the sole support for his wife who suffers from diabetes and his three young boys who all have severe issues with asthma and are on home nebulizer treatments every twelve hours around the clock. 
                  
On October 10, my client became overwhelmed with emotion in court after the Immigration Judge issued a decision granting him Lawful Permanent Residence status in the U.S.  We were able to show that it would be devastating for my client’s two children, one of whom is a teenager, to lose their father permanently, especially after the trauma of the divorce of their parents.  What made this case more heart-wrenching is the fact that the state court child custody order restricted the children from being taken out of the state, so a loss would have meant complete and permanent separation from their father.  Fortunately, the children no longer have to be worried about losing their father!
                  
On October 12, 2012, I made a very early drive down to Stewart Detention Center in Lumpkin, Georgia, over two hours from Atlanta, where I fought for a second chance on behalf of my client who was seeking the return of his green card before the Immigration Court.  He is a citizen of Canada, but spent most of his years in the U.S. and is still a kid, at age 20.  He was surrounded by his extremely supportive family, including his mother, father, brother who is active in the Air Force and was dressed in uniform, his brother-in-law who is an active member of the U.S. army and also dressed in uniform, and his sister-in-law.  His testimony was truthful and remorseful to the point that the judge said he couldn’t possibly tear this family apart without giving my client a second chance in the U.S., and that the American justice system is about this very thing – everyone is entitled to a second chance!  My client is now home and enjoying his time with his family for the first time in seven months!
                  
On October 15, 2012, my client appeared in court after being present in the United States since 1989 with a pending asylum application.  Fortunately, he was eligible for a special type of green card application based on his country of citizenship and the number of years he has been present in the U.S.  After the judge granted his case, he had an expression that told me he didn’t quite understand what had happened, so I whispered to him that the judge gave him a green card and permission to remain in the U.S. permanently.  For a man who has always been somewhat tough and serious, but kind, it was a treat to see him break down in tears for a good few minutes.  He was of course joined by the tears of his wife and 16 year-old daughter who could barely contain themselves in the back row of the courtroom.  Those are certainly some of the moments that make it completely worthwhile!  
                  
Finally, earlier in the afternoon on October 18, 2012, the Immigration Judge together with the agreement of the Department of Homeland Security granted a green card to a young man, not quite 30 years old, who has been present in the U.S. from Colombia for the last eight years.  More excited even than my client could have been his ten-year old stepdaughter who couldn’t keep the ear-to-ear grin off of her face.  The first thing she did was give her father the biggest hug, and she never let go.  It was so important for this man to have the opportunity to remain in the U.S. and continue to be the only father that this little girl knows and a fantastic and dependable husband to her mother.

Congratulations to each and every one of my clients who are all so deserving of this great opportunity to become a permanent part of the United States of America! 

Why We Need to Keep Deferred Action for Childhood Arrivals

by Rebecca Rojas

Recently, there has been much talk about Mitt Romney’s statement that while he would honor the deferred action for childhood arrivals (DACA) program initiated by President Obama, he would not continue it.  This has created unrest among potential applicants, but I think it is still too early to give up on the DACA program. As the program progresses, and as we begin to see the benefits it brings, I believe that it will continue in place until a more permanent solution can be implemented.

The benefits of the DACA program are particularly evident in a recent conversation I had with a small town business owner. This business owner had come to talk to me to see what he could do about “Pablo.”  The man looked almost apologetic as he explained to me that while he had favored limiting immigration, he wanted to help Pablo. Pablo, he explained to me, had been brought here as a small child and, upon high school graduation, had begun to help him in his business.  Pablo has now become my right hand man, he told me.  He knows everything there is to know about my business, he’s the hardest worker I have, and I trust him with my life.   

He was stunned when I explained to him that without deferred action there was no way for him or for his business to help Pablo to stay in the United States.

As I explained to him how Pablo would be able to benefit from the new DACA program, he began to see the hope that it gives to young people, who like Pablo, grew up in the United States, spoke English primarily, but under our current laws could not do anything about their immigration status.  At the end of our meeting, he confessed to me that he thought the new program was a sensible solution.

I tell this story as a reminder that it is difficult to pre-judge a program before seeing how it works. Thus, I think that as more individuals become aware of the benefits of the program, they will welcome its continued existence.

Because of this, I continue to encourage those who have not yet applied for the program to do so and to take advantage of the benefits it brings. 

Romney Will Honor Deferred Action for Childhood Arrivals

Tonight will be the first presidential debate between President Barack Obama and Governor Mitt Romney.  The debate will be held in Denver, Colorado, a state that has a high percentage of Latino voters.

In advance of this debate, it is no surprise then that Governor Romney on Monday stated that he would honor the Deferred Action for Childhood Arrivals (DACA) policy that President Obama announced on June 15, 2012:  
"The people who have received the special visa that the president has put in place, which is a two-year visa, should expect that the visa would continue to be valid. I'm not going to take something that they've purchased," Romney said. "Before those visas have expired we will have the full immigration reform plan that I've proposed."
I mention this news development because many in the immigration community have expressed a fear that Romney as president would revoke the policy and lead to a policy of deporting thousands, if not hundreds of thousands of young adults (who were brought to the United States before the age of 16 through no fault of their own).  It is good that we now know what Romney intends to do if and when he arrives at the White House in January 2013, whereas before he spoke in generalities about immigration policy.

However, let's not get ahead of ourselves.  Nobody knows what "full immigration reform" would look like under President Romney.  I hope that the the candidate will give more specific details regarding what "full immigration reform" entails - not rhetoric about enforcing immigration law and border security.  Conventional wisdom states that he will have a difficult time distancing himself from the tough anti-immigration rhetoric that he expressed during his primary campaign to win the Republican nomination.

On the other hand, let's not allow President Obama to get off the hook.  He also has some explaining to do for the immigrant community, especially those who can vote.  Immigration reform was not a priority in the past four years, other than his recent election year announcement for DACA.  I will also give him some credit for attempting to prioritize deportation cases (otherwise known as requesting prosecutorial discretion) by closing cases for noncriminal immigrants who are in deportation proceedings, rather than deporting them.  Still, looking at the numbers, his administration has deported more immigrants at a higher rate than the previous Bush administration.  Last year, more than 400,000 immigrants were deported.  Families have been torn apart.  Economic sectors of this country have been hit hard by this draconian deport-at-all-costs policy. The emotional and societal cost of this policy is immeasurable.  His party could not even pass the DREAM Act in the Senate when the Democratic Party had a majority.  In my home state of North Carolina, Democratic Senator Kay Hagan voted against it.

Though I will be watching the first of several debates between President Obama and Governor Romney, I unfortunately do not expect that the debate will revolve around any issue other than the economy, taxes, and jobs.  If immigration as an issue does come up, emotional rhetoric will be more valuable than facts and details.  I hope not.