The Los Angeles Times is reporting something I suspected was true, but it is nice to see documentation. THe paper analyzed the backgrounds of the 500 Californians who have died in the Iraq and Afghanistan wars and found that 59 were immigrants. Dozens more were first generation children of immigrants. Does anyone see any irony here? The antis regularly question whether today's immigrants are really assimilating as past generations have. And they claim that immigrants are just coming over here to get our goodies - our welfare, emergency room care, public schools, etc. - when they're not claiming they're coming to steal our jobs. How sad that these types of nonsense claims still find believers when immigrants are dying every week for their new country. Sorry for not posting this earlier, but I only just saw the article today.
Arizona may be about to test its new business license revocation law. Phoenix's famous Sheriff Joe has had his officers seize hundreds of employee records from the parent company of three Arizona amusement parks and arrested a half dozen employees suspected of identity theft violations. The Sheriff's office is investigating mismatched social security records and they say they may test the new employer sanctions law on the company.
Just got my hands on the proposed rule implementing the President's E-Verify Executive Order (thanks Naomi). A couple of items of note:
- normally, employers may only enter new employees in E-Verify; however, the proposed rule requires contractors to verify existing employees working on the government contract
- only contracts involving more than $3000 will trigger the E-Verify requirement
- subcontractors with contracts worth more than $3000 will be covered
- employers will have 30 days to enroll in E-Verify after signing a contract with the E-Verify clause in it
- agencies will have to include the E-Verify clause on any contracts awarded or solicitations issued after the rule takes effect
- the head of an agency has the power to waive the requirement
The House of Represenatives passed HR 5569, a bill extending the EB-5 Regional Center program for another five years. The program provides green cards to individuals who invest at least $500,000 in investment programs approved by USCIS. The programs must demonstrate to USCIS that at least ten jobs for Americans are created as a result of each qualifying investment. The program has been in existence since 1993 and has been growing in popularity in recent years. The bill passed by unanimous voice vote.
The American Immigration Lawyers Association is reporting that on May 24th the last receipts for cases selected in the H-1B lottery were mailed. So if you have not gotten a receipt by now, it would be a pretty safe bet that you were not selected.
While I normally don't deviate from the immigration-related theme of this blog, the news of NBC News Washington bureau chief Tim Russert's untimely death is stunning and very sad and I did not think the news should go unmentioned. Russert was certainly one of the nation's most admired journalists and one of the country's most recognized and influential public figures. His sudden passing is the more shocking because he was truly at the pinnacle of his career and was so visible in this year's presidential campaign.
Most Americans will remember the white board from the election eve coverage from the 2000 Presidential election that stated thee words - "Florida, Florida, Florida" to very presciently signal what would become the most extraordinary election in Americn history. Just recently, his pronouncement after the Indiana primary that the Clinton campaign was over upset many, but most had no doubt that if Russert says it is so, it must be so. Senator Joe Lieberman once very appropriately called Russert the "Explainer in Chief" and his analysis and tough questioning will be missed.
[Update: In watching the coverage of Russert's death, mention has been made that he was a lawyer in addition to a journalist. Certainly a credit to our profession.]
Remember my post from the other day where I mentioned that Secretary Chertoff announced that employment cards in adjustment cases would be issued for two years in cases where adjustment cases were expected to take more than a year to adjudicate? Guess what? Only cases where people lack a current priority date will get the two year EADs. That's nice for the folks who had a priority date retrogress on them (especially people who filed during VisaGate last summer). But adjustments almost always take more than a year to adjudicate so most of us were presuming that this policy was going to cover the bulk of adjustment applicants.
Which raises the bigger question of why we have this silly requirement to have an employment authorization card at all as opposed to making employment authorization incident to being a pending adjustment applicant (like we do for asylees)? This is a huge boondoggle since EADs are automatically granted when adjustment applicants are properly pending.
Same story for advance parole documents. Unbelievable stress just so USCIS can collect a fee for a case that is automatically going to be approved.
Historically, immigration has ranked relatively low on the list of priorities for the average American. Most people are generally pro-immigration (though relatively passive in showing it), but ever couple of decades, passions get stirred up and the antis gain in influence. And then things subside and the country returns to the healthy dominant pro-immigration normalcy that has contributed to America's amazing economic success.
The last several years certainly fit in to the passions category. But recent polls are indicating that Americans are less interested in immigration. If that continues, members of Congress can get back to making immigration policies that they believe are in the best interest of the country as opposed to policies made out of fear of the political consequences. The latest poll on the subject comes from NBC and the Wall Street Journal. The poll asked what people considered their most important issues. Immigration ranked low - now down to the sixth highest issue, down from fourth in December 2007. In 2007, 12% of the public ranked immigration as the most important issue. This month, that figure is down to 5%. And for those who ranked it their second highest priority, the count was down from 19% to 12%.
Hopefully, members of Congress will look at these numbers and realize that the politics have changed.
You can see the data here. Download WSJ_NBC_SURVEY_June2008.pdf
The Labor Department has released a bulletin offering explanation on the thinking behind the bombshell decision to audit the large immigration law firm. Here is the key language. I'm not sure this really clarifies things except it appears that DOL is saying immigration lawyers can review the legality of the rejection of US workers, but that if an employer indicates that a lawyer may not be consulted if the worker is determined by the employer to be qualified.
I think the problem with this is that it assumes that Fragomen was going to interfere with the hiring of the US worker merely because they asked to be notified when an offer was to be extended. There are logical reasons why the lawyer would be notified that have nothing to do with interfering with making the offer. For example, they may have wanted to be notified so that they could cease work on the labor certification case and not run up unnecessary legal bills. Or perhaps the certification was being sought for multiple workers for the same position. So instead of, say, 10 workers being certified by a single petition, certification would be sought for a smaller number and the firm needed the information on the qualified worker in order to properly document recruitment results.
The good news is that the guidance appears to make clear that employers do have a right to use an attorney, an important admission. Now the tug of war begins on just what limits DOL can place on attorneys.
By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must determine whether a U.S. applicant’s credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney or agent to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney, agent, or foreign worker may not thereafter consider the applicants’ qualifications and attempt to substitute his or her own judgment for that of
the employer. In the Department’s view, an employer’s determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken.
More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:
• Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.
• Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible “chilling effect” on the interests of U.S. worker-applicants in the position.
• After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.
Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employer’s recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.
Congratulations to British-born actor Mark Rylance for his winning Best Actor in a Play at the 2008 Tony Awards. Rylance won for his role in Boeing, Boeing, a revival of a 1960s comedy. The actor is known for his performance in many of Shakespeare's plays, but his Broadway role is a little different. The play centers around an airline pilot having affairs with three flight attendants, none of whom is aware of the other. All is going well until Boeing introduces a faster jet...
I have to also say that Rylance gave a really funny, odd acceptance speech that left the audience scratching its head and laughing.
Here are a few clips from the well-received Broadway play:
The Cato Institute's Jim Harper has been effectively challenging the Department of Homeland Security's assertion that the false positive rate with the E-Verify program is negligible. Here is Harper's latest analysis:
Yesterday at a meeting of the DHS Data Privacy and Integrity Advisory Committee, a new data point opened a small window onto the situation of the 5.3%. To review, 94.2% of the workers submitted to the system are confirmed as eligible for work within 24 hours. Of the 5.8% tentatively nonconfirmed, .5% successfully contest their nonconfirmations, leaving us with 5.3% who receive final nonconfirmations for reasons yet unknown.
Staff of the DHS’ U.S. Citizenship and Immigration Services bureau reported yesterday that they had recently added a “doublecheck” on tentative nonconfirmations, asking employers to review the data they had entered for errors. During the two months this has been in place, it has lowered the tentative nonconfirmation rate by 30%. That’s right - 30% of the tentative nonconfirmations had been caused by employers’ fat fingers. (”Fat fingers” is not a knock on employers’ fitness - it’s a techie term for data entry errors.)
If we assume that the figures recited above are from a period before the new fat-finger doublecheck, the 5.8% tentative nonconfirmation rate should have dropped 1.74% since the double-check was implemented. Next, assume (generously) that all of the .5% successfully contesting their tentative nonconfirmations were part of this cohort - the victims of employers’ fat fingers. This leaves 1.24% of workers submitted to E-Verify during this period who were eligible to work but victims of employers’ data entry errors - and who failed to contest their nonconfirmations.
There is plenty of room for error in this extrapolation, and I’ll happily publish refinements or corrections to what I’ve written here, but it looks like more than 1 in 100 employees are tentatively nonconfirmed by E-Verify and go on to final nonconfirmation even though they are eligible to work under the immigration laws. That’s a huge percentage considering that millions of Americans’ employability is on the line. The burden is on DHS and other proponents of electronic employment eligibility verification to figure out what’s going on and to fix it.
Some of the folks in the comments have been challenging my assertion that employers will have to fire workers if they are unable to resolve their problems in 8 days. Let me clarify how E-Verify works. If an employer receives a tentative non-confirmation notice, the worker is to be notified and given eight days to resolve the problem with the Social Security Administation of DHS. After ten days the employer is to run the employee's name again through E-Verify. The employer will either get a confirmation, a final non-confirmation or notice that SSA or DHS is still working on it. DHS and SSA are using ten days as the target to finish processing in each case where there is an initial non-confirmation. That means that in the vast majority of cases, ten days is the limit and then the employee must be terminated. While it is true that DHS or SSA could keep a matter open and en employer cannot terminate while that is going on, these are not the people I'm concerned as much about. I'm talking about the 1% or more that Jim Harper is mentioning - people who get an incorrect final nonconfirmation and who are terminated after ten days despite the fact that they still are trying to get the problem corrected. As Harper notes, 1% is an enormous percentage and could have devastating effects on many Americans.
I was a little surprised to see a decision on a relatively narrow and unusual set of facts come out of the Supreme Court given other issues that loom that seem to affect a lot more cases. The crux of the case is that when someone is in deportation proceeding and accepts a voluntary departure, they can now, under the Supreme Court ruling, seek to withdraw the motion for voluntary departure if they make the request before the departure date. The Board of Immigration Appeals and the 5th Circuit sided with the government's position that a voluntary departure motion could not be withdrawn.
There's a funny spoof on The Daily Show tonight where British correspondent John Oliver goes to California to marry fellow correspondent Jason Jones in order to solve his visa problems. Unfortunately, Jones is actually Canadian...
A few years back, Drew Carey and Craig Fergusen ran off to Vermont to engage in gay marriage visa fraud on the classic Drew Carey Show on ABC.
Funny stuff. Of course, this could never happen in real life due to the Defense of Marriage Act which bars immigration benefits to same sex couples. That part is not funny at all.
Still a ways to go, but Bulgaria is the latest eastern European country to move closer to this coveted status.
Yesterday, I honored Mark Rylance, Best Actor in a Play in the 2008 Tony Awards that took place Sunday night. Today, I offer congratulations to Paolo Szot, the Brazilian opera star who made a big mark on Broadway starring in the revival of the musical South Pacific. Here is a clip of Szot singing Some Enchanted Evening, the song he performed on the Tony Awards broadcast:
When I posted immediately after the release of the President's Executive Order requiring federal contractors to use E-Verify, I guessed that health care institutions that took Medicare and universities that participated in the federal student loan program would be covered. The proposed regulations, however, are more specific in stating that the order only applies to acquisition contracts and not all contracts. Procurement contracts involving goods and services are clearly covered, but I don't think Medicare a student loans would trigger the requirement, based on my reading. That does not mean health care employers and universities are off the hook, however. Many of them have contracts to provide services to federal employees. For example, if a hospital treats federal employees or their families under a provider contract, that might be covered. And universities accepting federal funds for research projects might be covered. Universities are nervous about the new rule as seen from this article in the Chronicle of Higher Education.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org