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

USCIS and Why You Need an Immigration Attorney

Being an immigration attorney is a joy.  I absolutely love what I do.  Helping people navigate the nightmare that is our current immigration system, deal with an entrenched bureaucracy, and advocate for my client's legal and human rights are all part of a day's work.  Being part of changing people's lives for the better and helping make the American Dream begin is the ultimate reward.   But, not everyone likes what an immigration attorney does.  In fact, it appears that the USCIS is at the forefront of not liking immigration attorneys very much!

As the result of recent litigation by the American Immigration Council, seeking through the Freedom of Information Act (FOIA) copies of USCIS training materials, a little gem was produced which goes a long way toward explaining USCIS hostility toward immigration attorneys.  In a PowerPoint presentation entitled "USCIS Adjudicator Interaction with Private Attorneys and Representatives" USCIS takes what can only be called an intolerant tone toward attorneys, beginning with the supposition that attorneys are an annoyance that have be dealt with and ending with a joyous set of PowerPoint slides called "Why attorneys use confrontational or belligerent behavior."  

Are you curious as to why USCIS thinks that attorneys use "confrontational or belligerent behavior" in an immigration interview?  Well so am I, since I have never seen a lawyer do such a thing (or perhaps the folks at USCIS do not understand the difference between advocacy and belligerence?) Here are the four reasons given by USCIS:

  • Misguided understanding of what it means to zealously represent a client;
  • To fluster or intimidate adjudicators into giving up a line of questioning;
  • To give their clients time to develop an answer to your question; and (my personal favorite)
  • To impress clients and justify legal fees.

Noticeably absent from the stated reasons is the principal one I have encountered for an increase in rhetoric between an adjudications officer and an attorney, USCIS adjudicators do not understand the role of an attorney in USCIS interviews--making sure the USCIS officer follows the law.  Far too often USCIS adjudicators fail to understand the law applicable to the benefit being sought. All too frequently USCIS adjudicators would rather ignore an attorney's attempt to correctly inform them of the law applicable in the particular case than accept the attorney's attempts for what they really are--an effort to get to a successful resolution of their client's case.

Let's be clear, not every attorney appearing before USCIS is an angel sent from heaven. But, likewise, neither is each attorney advocating on behalf of their client a messenger from the devil himself. So long as USCIS remains focused on finding fraud in every case (even those cases without it), it is essential to have an immigration attorney by your side advocating your case and ensuring that the law is followed to the letter.  Common wisdom says that only those who seek to be arrested talk to the police without a lawyer present.  Our jails are full of folks who pled guilty because they had no legal representation.  The Immigration courts are also full of people who were denied immigration benefits because they had no attorney advocating for them before USCIS. Take the lesson USCIS wants you to learn from its training materials. Have a lawyer present to defend and protect your legal rights whenever you speak to a USCIS immigration officer.  

What Employers Need to Know About The New Form I-9


On March 8, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately, all NEW hires by U.S. employers should fill out the new version of Form I-9, which is identified in the lower, left-hand corner of the form with the label “Form I-9 03/08/13 N”.  Starting May 8, 2013, use of the new version of the form is mandatory.

[We previously reported that employers must start using the new form on May 7, 2013.  However, USCIS has now clarified that the correct date is May 8, 2013.  On March 20, 2013, the American Immigration Lawyers Association (AILA) reported the following:  The AILA Verification and Documentation Committee took note of the conflicting information contained in the March 13, 2013 Federal Register notice introducing the revised I-9, Employment Eligibility Verification Form and contacted the USCIS Verification Division to confirm the effective date.  According to USCIS, the last day that an employer can use prior versions of the form is May 7, 2013. Employers must use the new form, marked with a revision date of 3/8/13, beginning May 8, 2013. USCIS is working to post clarifying language on I-9 Central.]

U.S. employers need to know the following about the new Form I-9:
Official Instructions.  The new Form I-9 now has 9 pages:  Official Instructions (pages 1-6), the form on which the employee and employer enter data (pages 7-8), and the List of Acceptable Documents (page 9).  The official instructions have been expanded from 2 to 6 pages.  Anyone who is involved with a company’s I-9 process should carefully read these instructions before beginning to use the new form.  These instructions and the List of Acceptable Documents must be made available to the employee while he or she is completing the form.
Other Resources.  Anyone involved with a company’s I-9 process should also have access to the updated Handbook for Employers:  Guidance for Completing Form I-9 (Employment Verification Form) and USCIS’s online resource for employers called I-9 Central.  These and the official instructions are excellent resources that should be consulted often to ensure compliance.
Only for New Hires.  Do not require current employees for whom there is already a properly completed Form I-9 on file to complete the new Form I-9.  Doing so could violate the antidiscrimination laws.

Section 1.  This is found on page 7 and is completed by the employee:
  • Although the employee completes this section, the employer is responsible for ensuring that it is completed properly and timely.
  • It must be completed and signed by the employee no later than the first day of employment, but not before accepting a job offer.
  • If the employee has 2 last names, enter both names under Last Name.
  • If the employee has not used any other names, enter “N/A” under Other Names Used.
  • No P.O. Box should be entered under Address and only border commuters from Canada or Mexico may enter an international address.  (We should not have border commuters in Utah, Georgia, or North Carolina.)
  • The birthdate should be entered in the format MM/DD/YYYY.
  • The employee is not required to provide his or her Social Security number unless the employer participates in E-Verify, in which case providing it is mandatory.
  • The form now requests the employee’s e-mail address and telephone number, however, the employee is not required to provide this information.
  • If the employee checks the box next to A noncitizen national of the United States, consider directing their attention to page 2 of the instructions, which identifies who may check this box.
  • If the employee checks the box next to An alien authorized to work until, he or she must enter either their Alien Registration Number/USCIS Number or their Form I-94 Admission Number.  If they obtained their admission number in connection with their arrival in the United States, they must also insert their foreign passport number and country of issuance.  If they obtained their admission number some other way, they may insert “N/A” in these spaces.
  • This is new and very important:  If the employee checks the box next to An alien authorized to work until and inserts an expiration date, the employer must track that expiration date and re-verify employment authorization on or before the date provided.  This is in addition to its duty to track the expiration date of any List A document (other than a U.S. passport or Permanent Resident Card).  If both Sections 1 and 2 indicate expiration dates triggering the reverification requirement, the employer should reverify by the earlier date.
  • There are special instructions on page 2 about the circumstances under which the Preparer and/or Translator Certification must be completed.  I generally recommend that the employer should not fill out any portion of Section 1.  If it does, however, the employer’s representative must complete this preparer certification.
  • There are special instructions on page 2 for how Section 1 should be prepared for minors and certain employees with disabilities.
Section 2.  This is found on page 8 and is completed by the employer:
  • Section 2 must be completed within 3 business days of the employee’s first date of employment, unless the employee is hired to work less than 3 days, in which case this section must be completed on the first day of employment.
  • On page 3 you will find a helpful 7-step process the employer should follow to complete this section.  The instructions emphasize that the examiner of the documents and the employee must be physically present during the examination of the employee’s original documents and that the person who examines the documents must be the same person who signs Section 2.
  • Do not forget to insert the employee’s full name near the top of the page.  This is a new field that I suspect many employers are going to overlook.
  • This section has been significantly improved to clearly identify the information from the original documents reviewed that must be recorded on the form, including Document Title, Issuing Authority, Document Number, and Expiration Date (if any).
  • There is now a list of the Social Security cards that may not be accepted under List C of the List of Acceptable Documents (page 9).
  • Under Certification, do not forget to enter the employee’s first day of employment.  (For temporary staffing agencies, insert the first day the employee was placed in a job pool and recruiters and recruiters for a fee may leave this space blank.)
  • On pages 3-4 you will find useful and detailed instructions about photocopying the documents presented, unexpired documents, and receipts, including what receipts an employer may accept and how to properly annotate the I-9 form when an employee presents an acceptable receipt.  Review these important instructions carefully.
Section 3.  This is also found on page 8 and is to be completed by the employer when reverifying that an employee is authorized to work either because their List A or C document (other than a U.S. passport or Permanent Resident Card) has expired or the employee has been rehired within 3 years of the date the Form I-9 was originally completed:
  • On pages 3-4 you will find useful and detailed instructions about reverifications and rehires.
  • An important feature of the new Form I-9 is the instructions that employers must now reverify employment authorization when an employee provides an employment authorization expiration date in Section 1 and that if both Sections 1 and 2 indicate expiration dates triggering the reverification requirement, the employer should reverify by the earlier date.
  • Although the instructions say that when reverifying employers have the option of completing Section 3 of a new Form I-9 or Section 3 of the previously completed Form I-9, after May 7, 2013, when the new Form I-9 becomes mandatory, it appears to me the employer’s only option would be to complete Section 3 of the new Form I-9.  The instructions state that the employer may attach just the page containing Section 3 (page 8), with the employee’s name entered at the top of the page, to the employee’s original Form I-9.  Do not discard the previously-completed Form I-9.
Retention Requirements.  The employer is required to retain only pages 7-8, which are the pages of the form on which the employee and employer enter data.  If copies of the documentation presented by the employee are made, those copies must also be kept with the forms.  The employer must have a properly completed Form I-9 for every current employee who was hired after November 6, 1986.  Once that individual’s employment ends, the employer must retain the form and, if applicable, copies of the supporting documents for 3 years after the date of hire or 1 year after the date of termination, whichever is later.  I strongly recommend that employers implement a method for tracking these dates and that it dispose of these records as soon as permitted.

Photocopies.  Making photocopies of the supporting documents is no substitute for the employer properly completing Section 2 and it certainly cannot take the place of completing Form I-9.  The single most important protection a company can have against a claim that it has knowingly hired an undocumented worker is to have a properly completed Form I-9 for each one of its employees hired after November 6, 1986.
E-Verify.  Similarly, even if a company uses E-Verify, it must still have a properly completed Form I-9 for its current employees.

Potential Penalties.  A company who fails to use the new version of Form I-9, to ensure that its employee properly completes Section 1, or to properly complete Sections 2 or 3 of the new Form I-9 is subject to civil fines ranging from $110 to $1100 per form.  The United States government is aggressively checking compliance through worksite audits conducted by field agents and forensic auditors.  I strongly encourage all employers to internally audit and assess their compliance utilizing the services of an attorney who has experience conducting such audits.
Do not delay your organization’s implementation of the new Form I-9.

**Note**:  The foregoing is not intended to be legal advice, nor should it be construed as such.  Each employer should consult with competent legal counsel about its particular circumstances and how best to implement the new Form I-9. 

¡Los 3 Más Grandes Mitos de Inmigración Que Usted Debe Saber!


Escrito por: Abogada Hiba Ghalib, Asociada, de Kuck Immigration Partners

Las predicciones de una importante reforma a nuestras leyes de inmigración se anuncian ahora que los líderes del Congreso de ambos partidos se reúnen en Washington para enfrentar a los cambios comprensivos del sistema de inmigración actual, creído ha suceder en 2013. Y, como los vientos de cambio soplan, las familias que esperan solucionar sus problemas de inmigración han comenzado a salir a preguntar que es lo que ellos pueden hacer.

Durante las últimas semanas, los abogados de Kuck Immigration Partners han tenido la suerte de viajar a varios lugares locales para hablar con la comunidad sobre inmigración, permitiendo a las familias e individuos con asuntos de inmigración, la oportunidad de preguntar cualquier cosa con respecto a inmigración. Después de hablar con miles de personas, se empieza a ver el ciclo de las mismas preguntas. No podemos adivinar lo que la reforma va a hacer, pero antes de tratar de predecir el futuro de nuestras leyes de inmigración, primero vamos a tratar de entender nuestro sistema actual un poco mejor. Para hacer esto, quiero tomar un momento para dirigir las tres preguntas mas comunes que yo he encontrado en esperanza de ayudar a los predicamentos similares.


Mito # 1: ¿Si yo estoy en los Estados Unidos después de haber entrado sin inspección, pero tengo un hijo ciudadano de EE.UU. o estoy casada de un ciudadano(a), puede mi hijo o esposo(a) solicitar mi residencia permanente?


No es tan simple. Si usted entró a los EE.UU. sin inspección, no puede ajustar su estatus a residencia permanente, aun si su esposo(a) es ciudadano(a) de los EE.UU. o tiene un hijo(a) que es mayor de 21 años de edad que pudran presentar una petición para usted. Para llegar a ser un residente permanente, usted tiene que salir los EE.UU. y el proceso consular de la misma manera que lo haría cualquier otra persona fuera de los Estados Unidos. Sin embargo, si usted es como la mayoría de la gente, usted ha acumulado presencia ilegal en los Estados Unidos, lo que daría lugar a una barra de tres o diez años de no poder a entrar a los Estados Unidos una vez que ya salga. En estos casos, la única manera de volver a entrar es con una renuncia a su presencia ilegal. Nuevo proceso de renuncia provisional estará en vigor a partir del 04 de marzo 2013 no cambia el requisito de presentación de la renuncia, sino que simplemente cambia el lugar y la hora que puede presentarla.  Para obtener más información acerca de la renuncia provisional, vea el blog de Exención Provisional Charles Kuck y explicación de USCIS cual está aquí.

Si usted piensa que está listo para continuar con este proceso, también quiere asegurarse de que usted es elegible para la residencia permanente. Durante muchas consultas con los clientes, no es raro para desenterrar un arresto viejo, olvidado por un delito cometido mientras "joven y estúpido" que usted pudo haber pensado que no era un gran problema, pero en realidad podría hacer que usted inadmisible. Es muy importante que usted consulte con un abogado de inmigración para asesorarle antes de presentar los formularios a inmigración. Esté preparado para ser sincero con su abogado—recuerde que ellos están de su lado y no te pueden ayudar si los mantienen en la oscuridad.


Mito # 2: Creo haber sido arrestado por robar y un DUI, pero mi abogado criminal me dijo que si me declaro culpable y pago la multa que no tendrá que ir a la cárcel. ¿Afectará esto a mi caso de inmigración en el futuro? ¿Podría ser ordenado una deportación? 


Aquí es donde se vuelve extremadamente crítico en asesorase sobre las consecuencias de inmigración debido a su caso criminal. En primer lugar, si usted o un ser querido es arrestado, asegúrese de no sólo consultar con un abogado criminal que puede realmente ayudarlos con sus cargos criminales, pero también consulten con un abogado de inmigración con experiencia quien esta más familiarizado con las consecuencias de inmigración de los cargos pendientes. Haga esto lo más antes posible. Si usted o su ser querido está encerrado, tenga mucho cuidado con la prisa de pagar la fianza penal hasta que haya por lo menos consultar con un abogado. Un cargo culpable, si era o no una declaración de culpabilidad, será más difícil de deshacer. Y si usted o su ser querido tiene detención por ICE, esto comenzará a tener efecto. Alguien puede decirte que si se declara culpable y paga una multa el cargo se va a "desaparecer" – pero si usted NO es un ciudadano de los EE.UU., esto absolutamente no es verdad. Incluso los residentes permanentes legales que han residido en los EE.UU. durante décadas pueden ser puestos en proceso de deportación por un delito cometido.

Larga historia corta, la prevención es la mejor medicina. Si no puedes cometer es un delito, y no puedes ser arrestado, a lo menos trata de evitar cualquier acusación que podría tener la potencial de ser prohibió de siempre poder residir  legalmente en los Estados Unidos. Si ya ha sido condenado, después de la condena es el remedio que tenga que puede explorar, pero sin duda usted necesita hablar con un abogado mas que calificado para asesorarle tanto en el proceso penal, así como su caso de inmigración.


Mito # 3: Si he estado en los Estados Unidos por más de diez años, ¿puedo aplicar para la residencia permanente? 


Afirmativamente NO puede solicitar la residencia permanente, simplemente porque usted ha vivido en Estados Unidos por un periodo de 10 años. No hay tal cosa como una "regla de 10 años". Ya con esto dicho, si una persona esta en proceso de deportación, él o ella puede calificar para lo que se llama Cancelación de Remoción y Ajuste de Estatus para Residentes Permanentes determinados. Para solicitar la cancelación se debe de demostrar que han residido en Estados Unidos durante al menos diez años, no tener ningún delito penal descalificado al contrario son personas o de "buen carácter moral" y también que sus familiares calificadas, ciudadanos de los EE.UU. sufrirán privaciones extremas y extraordinarias si le ordenan la deportación. Si usted cree que usted es elegible para aplicar la cancelación de deportación, usted puede hacerlo sólo con una defensa de procedimientos de deportación, tomando en cuenta el hecho de que no todos los solicitantes de cancelación ganan su caso, incluyendo los que son legalmente elegibles.

Esta lista no es de ninguna manera exhaustiva, ni pretende ser un consejo legal. Como cada persona es única, también lo es en los casos de cada persona. Aunque parezca que su vecino o amigo estuvieron o están en la misma situación exacta que usted, es probable que su caso es muy diferente. Por favor, llame a un abogado de inmigración para debatir su caso para ver lo que puedes hacer para disfrutar de un estatus legal en los Estados Unidos.

hghalib@immigration.net
404-816-8611



Why SB 160 Must Pass -- To Restore Some Sanity to HB 87



SB 160 fixes the problems caused by HB 87

Section 1 makes the reporting requirements easier and more efficient for public employers.

Section 2 makes compliance by businesses subject to HB 87’s E-Verify requirements easier and more efficient

Section 3 makes compliance reporting under HB 87’s license renewal requirements easier and more efficient

Section 4 allows for electronic maintenance of the records required under HB 87, thus ease the burden on public employers

Section 5 properly updates the definition of Public Benefits under state law to make it date specific.

Section 6 wisely exempts all lawful presence verification requirements from any contract with a public entity with a worth under $10,000.

Section 7 aids the Secretary of State and other public entities by exempting from in-person, original document verification for licenses and public benefits after the initial demonstration of such documents. 

Section 8 makes reporting requirements easier and more efficient for public employers

Section 9 allows for copies of secure and verifiable documents

Section 10 provides a necessary and entirely appropriate and reasonable compliance scheme for public entities to follow to report on and implement the strictures of HB 87, without enduring additional harm or injury to officials or the entities themselves.

Simply Put, HB 160 MUST be passed, as is, without amendment, to solve the problems caused to Georgia public employers by HB 87. 






Why HB 125 Must Be Defeated


HB 125 is Bad for Business, Bad for the Economy, Bad for Immigrants and Bad for Georgia.

Section 1 expands HB 87 (Georgia’s Anti-Immigration law) by modifying its “Definitions” of “contractor” and to which entities HB 87 applies

Section 2 extends HB 87’s E-Verify Requirement and Future IMAGE requirement to every employer in Georgia

Section 2 expands the scope of the mandate of the un-oversighted Immigration Enforcement Review Board

Section 3 modifies and increases the mandatory application of E-Verify to Georgia Employers

Section 3 increases compliance costs for State Agencies, Counties and Municipalities

Section 4, while limiting HB 87’s compliance requirement to NEW licenses, requires additional compliance efforts by businesses and state agencies, counties and municipalities

Section 5 substantially modifies the penalties imposable by the Immigration Enforcement Review Board

Section 6 eliminates the Federal and Attorney General definitions of “Public Benefits” and greatly expands what are prohibited “Public Benefits” under HB 87

Section 6 adds as “Public Benefits” Homestead Exemptions, Public and Assisted Housing, Retirement Benefits, Driver Licenses, Grants and Tax Credits

Section 6 takes away Driver’s Licenses from federal DACA beneficiaries who already have driver’s license under current state law!

Section 6 will require Hundreds of thousands of Georgia Homeowners to prove their legal immigration status (including citizens) to get a Homestead Exemption!

Section 6 also bars ALL undocumented students from attending any Georgia college or university even if they pay in-state tuition and even if they are DACA beneficiaries

Section 7 eliminates the use of a foreign passport as a secure and verifiable document, eliminating the ability of any foreign national form showing their immigration status to obtain a Georgia License, or from signing to obtain lawful benefits for their US Citizen children.

Section 8 mandates creation of a new immigration compliance system, which is unfunded and unnecessary for any legitimate state purpose.

Section 9 implements all these changes on July 1, 2013.

Section 10 repeals all contravening laws and statutes, without mentioning them.

HB 125 is the steroid needed to revive the failure that was HB 87.

HB 125 is bad for business, bad for the economy, bad for our state’s image. 

Simply put, HB 125 is bad for Georgia.
  



Five Reasons Your DACA Petition Might Be Delayed

by Rebecca Rojas, Associate


At our office, we get phone calls every day from DACA applicants who want to know why they have not yet received their work permit when their friend/sibling/cousin/classmate who filed after them has already received theirs.  There are many reasons why a DACA (or any other immigration) case can be delayed. These are the top five that we see most frequently:  

1. USCIS Processing Procedures - Without a doubt this is the main reason why petitions are not approved in the order they are received. 

First, once the petition is submitted, it is routed to one of two service centers.  The processing   times of the service centers vary.  You cannot control which service center your application is sent to.

Second, within each service center, the petitions are assigned to different officers.  Some officers work faster than others.  Some officers approve more petitions each day than others.  Unfortunately, you have no control over which officer will review your petition.  Its like driving home from school or work. Sometimes you hit all the green lights, sometimes you hit all the red lights.  Why?  Bad luck or good fortune.

2. Immigration History – If you have been in immigration court, approval of your application is going to take longer.  This is because your file is going to be larger, more complicated, and the officer may have to wait to receive your entire immigration file from the various agencies.

3. Criminal History – If you have had any type of prior contact with law enforcement, your application will take longer. It does not matter that your case was dismissed.  It does not matter that you paid your fine.  It does not matter that all charges were dropped.  Your case will take longer.

4. Physical Presence Issues  - As a rule of thumb, Kuck Immigration Partners tells our clients this:  the longer you have been out of school, the longer it will take your case to be approved.   This is because the officer has to review all the extra documents you had to submit to prove that you have been here since you graduated.  This makes your file larger and more complicated, and thus it will take longer.

5. USCIS Error – While this affects only a small number of applications, it does exist. By way of example, we had a client whose petition was filed many months ago.  We heard nothing for some time, and then USCIS updated its website stating that it had sent us a letter requesting more evidence.  We had never received a letter requesting more evidence so we immediately contacted USCIS asking for more information.   About two weeks later, we received two letters in the mail on the same day from USCIS.  The first stated that USCIS had made a mistake on its website and that there was not, and had never been, a letter requesting more evidence.  The second letter was the letter from USCIS requesting more evidence!  This was obviously an error on USCIS’s part.  The good news is that were able to contact USCIS again and the petition has since been approved, but  this USCIS error did cause some delays.

While we can give estimates regarding how long a DACA petition will take, it is impossible to tell you exactly how long the processing time WILL be.  This is just the way our frustrating and poorly run immigration system works.  Patience is a virtue when dealing with the USCIS.

The New Form I-9 and How to Properly Use It!

On March 8, 2013, USCIS announced that all U.S. employers should begin using Form I-9 [with a revision date of “(Rev. 03/08/13)N”)] to comply with their employment eligibility verification responsibilities for NEW employees.  The revision date is located in the bottom left-hand corner of the form.  


Here is a PDF version of the new Form I-9.  After May 7, 2013, all prior versions of Form I-9 can no longer be used and employers who fail to use the new Form I-9 will be subject to all penalties, as enforced by U.S. Immigration and Customs Enforcement (ICE) and the U.S. Department of Justice (DOJ).  

The key revisions to the Form I-9 include:
  • Adding data fields, including the employee’s foreign passport information (if applicable) and telephone and e-mail addresses.
  • Improving the form’s instructions.
  • Revising the layout of the form, expanding the form from one to two pages (not including the form instructions and the List of Acceptable Documents) with the employee filling out the first page and the employer filling out the second page.

In response to this announcement, we urge employers to follow these recommendations:
  1. Immediately familiarize yourself with the new Form I-9, including the official instructions attached to the form.
  2. Identify an individual or a team within your organization who will be responsible for overseeing your organization’s transition to using the new Form I-9, including modifying existing policies and procedures as necessary.
  3. If your organization is utilizing electronic Form I-9 software to manage the Form I-9 process, begin working immediately with the software developer or vendor to make sure necessary updates are made and implemented timely.
  4. Do not require current employees for whom there is already a properly completed Form I-9 on file to complete the new Form I-9 (Rev. 03/08/13)N unless re-verification applies.  Also keep in mind that unnecessary verification may violate the anti-discrimination provision, which is enforced by DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices.
  5. Now is an excellent time to conduct an audit of your organization’s I-9 forms to assess compliance and to identify corrections that can be made to limit potential liability.  It is essential that you utilize the services of an attorney who has experience conducting such audits.
The most complicated one-page government form has now been "improved" by making it a 2-page form.  Don't neglect or delay your organization's implementation of the new version of the I-9 form and don't underestimate the importance of making sure your organization is complying with this important regulation.

Georgia Anti-Immigration Legislation Is Back--Stop HB 125!


Two months, at the start of the legislative session, Representative Hightower sought community support for a bill to “fix” a key problem with the poorly written and nightmarishly shortsighted HB 87, specifically as it applied to the Secretary of State, and to counties and municipalities.  Many community organizations told Representative Hightower that they would be happy to publicly support what became HB 32.  HB 32 was intended to be a bill which reinstated the ability of the Secretary of State to renew licenses of all types in a much more efficient manner than dictated by the terms of HB 87.  There was no talk of, nor apparent desire to further enhance the anti-immigration reputation that Georgia had burnished for itself in HB 87.  However, a substitute bill, HB 125, has replaced HB 32, and has been hijacked, by whom it is unclear, and now is another anti-immigration vehicle destined to careen Georgia off the path of normalcy restored by the federal court decision striking down the worst part of HB 87.    What is clear after reviewing substitute HB 125 is that people have not been paying enough attention to the immigration doings at the state legislature this year.  This bill is bad and must be defeated

The Problems with “Substitute to HB 125”

HB 125 tries to broaden the application of Georgia’s existing anti-immigration legislation, and further limit Georgia’s so-called Secure and Verifiable Documents Act.   These changes smack of the efforts of Donald King and his continuing efforts to make Georgia into the anti-immigration laughing stock of the United States.

Section 1 – Expanding HB 87 by Modifying “Definitions.”

Section 1 of the bill subtly changes the definition of “contractor” to include ALL contractors, not just one who performs services for a Public Employer.  By doing so, the intent is clear—expand to whom immigration compliance laws in Georgia apply.  (I would imagine that the construction industry in Georgia might be a little upset by this provision, given the added costs such a change would have in their businesses.)

Another major definitional change in Section 1 is the expansion from the application of the Georgia immigration compliance rules from state construction contractors to ANY contractor or sub-contractor whether or not bidding is involved  (the added monetary limit is so low as to be laughable); again significantly expanding government involvement in business at a time when most sensible legislators are seeking to get government OUT of business’s business.

Section 1 also expands the application of HB 87 to every government entity in state even if they only have one employer (some smaller counties and entities were excluded previously because the costs of compliance outweighed the need of unnecessary compliance).   Further section 1 expands the applicability of the statute to everyone with a contract (written or not), with a state contractor, thus potentially covering virtually every business in the state.

Section 2 Makes HB 87 Cover Every Business In the State and Sets the State employers up for Mandatory IMAGE Enrollment.

It is not until you drill down on the language of this this section, and the actual language of HB 87 where you see the direction this bill is going – Mandatory usage of the ICE employment verification system called “IMAGE,” or what many in the immigration field call:  ICE as your Human Resource Department!  There are few, if any, voluntary IMAGE users. The vast majority of those enrolled in IMAGE because they have been previously found by ICE to have engaged in intentional hiring of undocumented workers.  It is simply overkill to require this as a standard for public employers. 

Remember that Immigration Compliance Commission the state legislature created without any public input at the end of the debate on HB 87?  Well, the substituted HB 125 is going to expand what the anti-immigration gadflies, can complain about, and thus expand the scope of this unfunded and non-oversighted government panel.    Just thought you would want to know what (and ultimately who) is behind this effort.

Section 3 Substantially Modifies and Increases the Mandatory Application of E-Verify to Georgia Employers, and Increases the Compliance Costs for State Agencies, Counties and Municipalities.

Section 3 makes several changes to existing provisions inserted by HB 87.  First, it eliminates the requirement that contracts be entered into “pursuant to this chapter.”  Some might argue that the language is superfluous.  But really, does anyone think our state legislature goes through old statutes looking for superfluous language?  No, the intent of removing this qualifying language is that it amplifies what was previously limited, here, contracts entered into by public employers for any services.  Thus, it is an automatic expansion of the E-Verify, and possibly the IMAGE requirement. 

Section 3 also “eliminates” the need for “public employers” to submit its specific annual report to the Department of Audits and Accounts (with several required factors), but substitutes another “annual report” to the same department to prove they are complying with the new terms of HB 87.  So, what really happened here?  What is the purpose of submitting one report for another?   It is bait and switch, because the clause the new reporting requirement refers to, merely incorporates into a new statute (found in Section 8 of Substitute HB 125), the same, if not GREATER reporting requirements.   Consequently, the compliance requirements for State, County, and Municipalities has become GREATER, than they have been under HB 87, thus creating an even greater unfunded mandate than has existed previously.

Section 4 Does Accomplish the Limited Purposes of Limiting HB 87 Compliance to New Licenses, But Still Requires Additional Compliance Efforts by Businesses and State Agencies, Counties and Municipalities.

Once again, the effort to “fix” a small problem with HB 87 is complicated by additional qualifying language in another part of the “fixed” statutory language.  HB 125 eliminates the requirement that business license renewals require counties and municipalities verify E-Verify compliance, but then adds the requirements that if once provided an E-Verify number that a renewed license cannot be issued if the number is different or not available for future renewals.  So, compliance work by the county or municipality is still required.  There is NO elimination or reduction of effort by counties or municipalities.  Further there is, like in Section 3, an INCREASED annual reporting requirement as modified in Section 8 of HB 125.  In the law, they call this bait and switch.  In legislating they apparently call this reform (or quite possibly intentional deception). 

Section 5 is a Simple Statutory Reference Change to a NEW section of the Law.

Section 5 purports to simply change a statutory reference from Section (c) to Section (d) of 50-36-1.  But, as we will see subsection (d) is modified from what was subsection (c), the penalties for noncompliance with the reporting requirements (enforced by the governmentally appointed and non-oversighted Immigration Review Board), could easily result in an increasing number of complaints and compliance costs (unfunded by the State) to State agencies, counties and municipalities.  Not only is there NO evidence that such a requirement is needed, but there is no evidence at all that the Immigration Review Board performs any useful purpose in a state that purports to support a more limited form of government.

Section 6 Eliminates Reference to Federal Statutes that Define “Public Benefits” Under State Law And Expands What are “Prohibited” Government Benefits under HB 87

Section 6 begins the changes to those put in place by HB 87 by intentionally eliminating reference to the federal statutes that define public benefits under federal immigration law.  Why?  That is a good question, the likely answer would be that it is superfluous; but again when does a legislature do this?  Basically never.  The actual answer should not surprise anyone. By eliminating what the federal government defines as public benefits, the state can do two things, expand what IT considers public benefits, AND potentially ignore federal law by what it does NOT define as public benefits, effectively negating federal law. 

Section 6 also eliminates the “list” that HB 87 mandated the Attorney General to create of what were “public benefits.”  One can only guess why such a change is being made, other than to allow Section (as noted below) to EXPAND what are prohibited public benefits beyond the list created by the Attorney General. 

Section 6 then adds to the list of what are “public benefits” under 50-36-1.  These “new” prohibited public benefits are:  Grants, Homestead Exemptions, Public and Assisted Housing, Retirement Benefits, Driver’s Licenses, and Tax Credits.   

Why is this important?  It is important because it means a person who cannot pass a SAVE check (the database maintained by USCIS for States, counties and municipalities to use to check the legal “status” of an immigrant in the US) is permitted to obtain this benefits. For example, under current law DACA students are allowed to obtain driver’s licenses.  This revision may enable to state to DENY drivers licenses to legally resident DACA grantees! 

Further, by adding homestead exemptions to this list anyone who claims a homestead exemption will now have to have his exemption processed under SAVE.  If a homeowner is undocumented (and there are a LOT of undocumented homeowners in Georgia), they will no longer be able to claim a homestead exemption.  Similar denials will result from the other newly added “public benefits.”

There is one curious change in Section 6.  It mandates that lawful presence be verified as defined under “federal immigration law.”  This can be taken to mean that when the federal government, as in the case for DACA students issues a policy memo on what legal presence is, that the state can ignore it, because it is not in federal immigration law, but rather in a DHS policy memo.  Because this section does not define “federal immigration law” it is impossible to understand its implication or its parameters.  This is an example of someone writing this legislation that clearly does not understand federal immigration law, its creation, its use, or its policy development.  This is yet another reason why a state legislature should not be creating legislation referencing or regulating immigration.  Undoubtedly this will result in federal court litigation should this provision become law. 

Section 6 also requires that state post secondary education “public benefits” comply with the federal requirements of 8 USC 1623.  What exactly does that statute say? 

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States 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 an amount, duration, and scope) without regard to whether the citizen or national is such a resident.

Clearly, the state legislature wants no undocumented student to get in-state tuition. But a careful reading of this statute does exactly the opposite.  By making it the basis of state law, it allows the Board of Regents to ALLOW undocumented students to attend any state institution and to in-state tuition on the same terms and conditions it allows for out-of-state students to do so (for example by partial tuition scholarships).  This change, we could all live with.  But there are still problems here. 

Section 6 tries to remedy the problem created by HB 87 in requiring in person presentation of a “secure and verifiable” document.”  With a modification of subsection (e), now subsection (f), the original and sole limited purpose of a correction to HB 87 is finally found – by allowing electronic and facsimile copies of these documents to verify eligibility for public benefits for immigrants (and everyone else).  No one is opposed to this limited change to this provision. It is necessary to correct this massive oversight by the original authors of HB 87.  But it cannot and must not be part of another attack on immigrants in Georgia.  We are supposed to have moved past this.  Clearly some legislators have not done so. 

Section 7 Eliminates the Use of a Foreign Passport as a Secure and Verifiable Document without a Valid I-94 Card.  DHS will shortly STOP issuing I-94 cards!

Section 7 was clearly written by someone who does NOT understand or know “federal immigration law.”  By eliminating the use of a foreign passport without a valid I-94 card, the legislators are attempting, yet again, to limit the ability of undocumented parents to see permissible public benefits for their U.S. citizen children.  There is no other reason to so limit the use of a foreign passport (which the US government requires fulfills certain anti-fraud requirements, e.g. the document IS secure and verifiable). 

Even more stunning is the lack of research by the authors of the substitute HB 125, in failing to know that DHS has already announced the end of the issuance of an I-94 card.   While the provision allows for “other federal document” to prove immigration status, what are they?  What is that?  Frankly, at this time no one knows. We do know this that right now, NO ONE, undocumented or documented will be able to comply with this new requirement.

Section 8 Adds a New Code Section That Mandates Creation Of New Immigration Compliance System, Without Allocating Funds to Create the System

Typical of many all of the unfunded mandates of HB 87, Section 8 of Substitute HB 125 mandates, without any funding, that the Department of Audits create an electronic reporting system (and necessary support to all state agencies, counties, and municipalities) for immigration compliance under HB 87.  This database will contain the name and E-Verify compliance number of every private employer in the state who is required to comply with HB 87’s E-Verify requirements.  Additional reporting requirements also cover all “public benefits” (newly defined) covered under the mandate of the state agency, county or municipality.  This provision is clearly designed to make reporting more uniform or traceable, and easier for the anti-immigration gadflies to complain about omissions and oversights to the Immigration Review Board. 

Section 9 makes these changes effective on July 1, 2013.

Conclusion

Substitute HB 125 does MUCH more than make the changes requested by the Secretary of State and state agencies, counties and municipalities.  It attempt to dramatically alter the options available to legal and undocumented immigrants in Georgia, going to so far as to attempt to take Driver’s Licenses away from DACA recipients and Homestead Exemptions away from homeowners.    Apparently, someone has hijacked legitimate changes to the errors in HB 87 (which attempt was supported by many of the opponents of HB 87), in an effort try to bring anti-immigration legislation back to Georgia after the defeat of the key provision of HB 87. 

It cannot be more clearly stated.  These unannounced changes to what was a simple fix to HB 87 are an affront to the organizations that willingly supported it when it was announced.   This substitute HB 125 cannot pass.  Every effort must and will be made to stop these anti-immigration provisions from becoming law in Georgia. Call Speaker Ralston today at 404-656-5020 to ask him to stop HB 125 from being voted on and to stop Georgia from becoming the laughing stock of the U.S., again.