President Obama Expected to Take Executive Action on Immigration in the Coming Days

Contributed by Koby Polaski, Senior Attorney

President Obama plans to announce as soon as this week a broad overhaul of the United States immigration system that will reach up to five million undocumented immigrants. Major news sources report that President Obama will use the full force of his executive power to implement a plan with a broad scope, reaching everyone from undocumented immigrants facing deportation to legal immigrants in technology fields. 

One of the most far-reaching components of the plan would allow parents of children who are American citizens or lawful permanent residents to obtain work authorization and protection from deportation. The remaining parts would provide clear guidance on enforcement priorities - directing Immigration and Customs Enforcement to focus enforcement resources on those with no family ties to the United States and serious criminal histories; expand opportunities for immigrants in technology fields; and provide protections for farm workers who have been employed for a to-be-determined amount of time in the agricultural industry. In what is likely an effort to appease Republican protestors, the proposed reform also includes increased security at the southern border.

President Obama clearly feels that Congress will remain gridlocked on passing any kind of immigration reform, so he is doing what he can within his power to change the nation’s immigration laws. This move is reminiscent of the President’s 2012 executive order offering deferred action to the “Dreamers,” who came to the United States as young children.

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Non-Agricultural Guest Workers: 2B or not 2B

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

As the US economy recovers and unemployment decreases, many employers are finding it more difficult to find available workers in various non-agricultural labor industries. On occasion when the US labor force is lacking, some employers turn to a more global pool of skilled labor. Unfortunately, the current immigration laws limit the type of labor for which foreign skilled and unskilled labor may be hired.

The Immigration and Nationality Act (INA) allows employers to hire skilled and unskilled laborers in H-2B status for non-agricultural work. However, among other requirements, employers must prove that the offered position is commonly seasonal, peakload, or a one-time need. These restrictions alone eliminate almost all year-round jobs. The regulations and rules applied by the US Departments of Labor and Homeland Security further restrict time periods. The US Department of Labor will generally not grant a seasonal or peakload position for more than 10 months, even though an employer, technically, could request up to 12 months at a time. For a one-time need, an employer could employ an H-2B worker for up to 3 years, but may only request labor certification for up to 12 months at a time.

Many employers in this situation may decide that the need is “one-time.” Even if the worker can only work for up to 12 months to fill the gap until an available US worker may be identified. However, a “one-time” need is strictly enforced and narrowly defined by the Departments. In general the category was created for true “one-off” situations, such as construction or demolition workers needed to clean up after a natural disaster. The offered position must have a definite end date. In limited cases, the government may extend H-2B status to a worker or workers hired to train US workers. However, the employer must establish an organized training plan, define the training period, and identify the US workers who will be hired and receive training at the hands of the foreign worker. In addition, the foreign trainer may not engage in “productive” work for the employer, only training of the US workers, and intend to depart the United States as soon as the training schedule has ended. In addition, an employer must convince not one, but three different departments of the United States that the position is a “one-time” need and will not jeopardize the integrity of the H-2B program. In other words, an employer could devote a lot of time and money to develop the training, hire the US workers, prepare and submit a labor certification, recruitment, gathering of documentation, payment of fees, and the application could be denied before the foreign workers are even selected.

The alternatives to a “guest worker” type status are minimal at present. A more entrepreneurial foreign national could consider an E-2 Treaty Investor status. However, an E-2 status may require more of a commitment of time, money, and effort on the part of the foreign national than an H-2B status. In very limited cases, if the employer has a foreign affiliated entity which has been in business for one year or more, the foreign national may qualify for an L-1 Intracompany Transferee visa. However, due to the political climate surrounding L-1 status, in many cases, unless you can prove that the skilled worker invented the product or methodology, it is often difficult, if not impossible, to come by an L-1 visa. If the foreign national is seeking to expand her work experience to better her prospects of employment in her home country, then she may be eligible as a J-1 Exchange Visitor trainee, depending on the type of work in which she seeks training. However, similar to the one-time need “trainer,” a “trainee” may also not engage in productive work and the period of stay could be limited to only one year in certain industries. The J-1 Trainee category is also highly regulated and attempts to extend or change status are prohibitive.

If none of the above seem appealing, then the congressional optional is always available, i.e., the employer speaks to their congressional representatives to promote a less restrictive guest worker program. The Senate passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, in June 2013, which included a W-1 nonimmigrant visa for non-agricultural temporary workers. The Senate Bill would condition the number of visas available based on unemployment rates in a geographical area and labor shortages in the field of occupation. The House of Representatives has not proposed an equivalent for non-agricultural workers.

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Former DHS Secretary Napolitano Calls For Executive Action on Immigration

Contributed by Aaron Hall, Partner

If, as expected, Congress does not address immigration reform by passing any legislation, Former Department of Homeland Security (DHS) Secretary Janet Napolitano supports executive action to step in and use lawful executive authorities to take action in the immigration arena.

While she did not address any parameters for a potential executive action, Napolitano described some of the behind the scenes maneuvering in the process for the 2012 executive action titled Deferred Action for Childhood Arrivals (DACA) and explained that the DACA program could be “a good petri dish on how you set [a broader executive action] up, the budget stuff, all of those nuts and bolts.’’

President Obama has said that he intends to take executive action by the end of 2014 (after delaying on his previous statement that he would implement it by the end of summer).  Speculation is that the new executive action could resemble the DACA program but would impact a much broader class of potential applicants.

Further Reading:

-Washington Post story on Napolitano’s Statement

-Joseph Law Firm DACA page

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Will We See Changes to the H-1B Program Before the New Year?

Contributed by Koby Polaski, Senior Attorney

In early October, President Obama announced his plans to make the H-1B system “more efficient” through executive action. In a White House transcript, Obama specifically said, “What I’ve committed to is, is that assuming Congress doesn’t act, I will use all the executive authority that I legally have in order to make fixes in some of the system. And that includes potentially making the H-1B system that is often used by tech companies and some of the other elements of our legal immigration system more efficient so we can encourage more folks to stay here.”

This announcement drew criticism from some Republican senators who argue that Obama should instead focus on protecting US workers. Senator Grassley is a leading critic who contends that all employers should be required to attest that they aren’t displacing or replacing US workers with foreign workers. H-1B using companies aren’t required to first offer an available job to a US worker.

On the opposing side, urging Obama to exercise the full force of his executive power in this area, are companies like Microsoft. Microsoft is arguably the leading corporate critic of our country’s current H-1B program. Microsoft’s situation portrays clearly the current problems with the H-1B system. Because of the H-1B cap and lottery, H-1B visas are hard to come by, and petitioning employers face high rejection rates. For example, Microsoft will apply for roughly 1,000 H-1B visas in the coming fiscal year, and will only get about 50% of those.

Unfortunately, because Obama cannot raise the H-1B cap, it is hard to imagine what action he can take that will create the lasting and drastic changes we need. 

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EOIR Announcement for Denver Court

Contributed by Melanie Corrin, Partner

On September 10, 2014 the United States Executive Office for Immigration Review (EOIR) announced that it will assign all immigration cases originating at the Artesia, NM Detention Center to the Immigration Court in Denver, Colorado. 

As an update to this announcement, Immigration Judges Trujillo and Livingston are now assigned to cases for the Artesia Detention Center until further notice.  The court has been cancelling all hearings for these two judges, initially in six week increments and increasing in three week increments as needed.  If your case is before one of these judges you will receive a cancellation notice in the mail, as will we if we are your attorney of record.  As of right now, the court is not re-calendaring these cases, but has stated that it will as soon as possible.  Considering the number of pending cases before the immigration court, and the fact that these cases are being put off indefinitely, this will certainly have an immediate effect on removal proceedings for individuals who are not currently detained.  Hearings will most likely be scheduled into 2017 and beyond.  If you are a current client, we will contact you as soon as we receive a notice and discuss strategy and options going forward. 

Please contact Joseph Law Firm, P.C. with any immediate questions or concerns.

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USCIS Extends TPS Registration for Honduras and Nicaragua

Contributed by Kim Tremblay, Associate Attorney

This week, DHS announced that it was extending Temporary Protected Status (TPS) for Hondurans and Nicaraguans in the United States.  DHS first announced the availability of TPS for citizens of these countries in January 1999.

If you currently have TPS and have maintained your status, you must reregister during the reregistration period.  This period will be between October 14, 2014 and December 15, 2014.   Your status will be extended until July 5, 2016.  The employment authorization document that you have will be automatically extended until January 5, 2015 while you are waiting for your new employment authorization document. 

If you do not currently have TPS or if you did not reregister, you may register if you meet certain conditions. For example, if you could not register because of compelling circumstances, you may be eligible to do so now.  You should consult an immigration attorney to determine whether you meet the conditions for late initial registration or late reregistration.

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Revised Colorado Affirmation Form Use Mandated as of October 1, 2014

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

The Colorado Department of Labor and Employment (CDLE) published a revised Colorado Affirmation Form on September 1, 2014. The CDLE will not accept any other version of the form on or after October 1, 2014. You may access the revised form at: https://www.colorado.gov/pacific/sites/default/files/EVL-MandatoryAffirmationForm9-1-14.pdf.

Any company that employs workers in Colorado must complete and maintain a Colorado Affirmation Form for each employee hired on or after January 1, 2007. The Affirmation Form must be completed by the employer within 20 days of the date of hire for all new hires. The employer essentially attests that she has complied with the federal Form I-9 Employment Authorization Verification requirements. Among other attestations, the employer must attest that she has “examined the legal work status” and “retained file copies of the documents required” for completion of the Form I-9 pursuant to 8 U.S.C. § 1324a. However, unlike the federal form, Colorado requires that the employer copy the documents an employee presents to prove employment authorization and file the copies with the Colorado Affirmation form. The Affirmation Form must be maintained as long as the employee continues to work for the employer. Form I-9s and Affirmation Forms should be maintained in separate locations or files and not in general personnel files.

The CDLE is auditing employers and assessing fines if employers fail to comply with the Affirmation Form. The CDLE has conducted over 7,000 such audits, most at random, since the law’s enactment in 2007. Out of that pool, as many as 180 employers have been fined for violations. Penalties for the “reckless disregard” of the documentation requirement or submission of false or fraudulent documentation may be subject to fines as much as $5000 for each first offense and up to $25,000 for each subsequent offense. Employers should conduct regular self-audits both of the Form I-9s and the Colorado Affirmation forms, train all staff responsible for the collection of personnel documentation, and include Colorado Affirmation requirements in policy and procedure documentation. Employers are also wise to consult with immigration and employment law attorneys to assure compliance both with the federal and state government employment authorization verification laws.

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DACA Grantees Now Eligible to Join the Military through the MAVNI Program

Contributed by Kim Tremblay, Associate Attorney

This week, Pentagon officials announced that individuals who have been granted Deferred Action for Childhood Arrivals (“DACA”) will be able to enlist in the military through the Military Accessions Vital to National Interest Program (“MAVNI”).  The MAVNI program allows the military to recruit non-U.S. citizens who have certain skills vital to the national interest.  These skills include training as a medical doctor, nurse, or speaking certain languages and being familiar with the cultural norms of the speakers of that particular language.  The maximum number of recruits under this program is capped at 1,500.  The recruits must meet several additional standards.

Although this announcement does not open the doors of the military to a broad number of immigrants, it will give individuals with the requisite skills an opportunity not only to serve in the army, air force, or navy, but also to be on a fast path to U.S. citizenship.   

For more information on the MAVNI program:

http://www.defense.gov/news/mavni-fact-sheet.pdf

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Update to DMV Appointment Scheduling

Contributed by Jennaweh Leyba, Associate Attorney

The Colorado Road and Community Safety Act (SB251) provides an opportunity for some undocumented immigrants living in the United States to obtain a driver’s license. However, due in part to the incredibly high demand and limited resources for issuing these types of licenses, the process has not been without its challenges. Fortunately, the DMV liaison committee from the American Immigration Lawyers Association (AILA), along with community members and stakeholders have been working hard to communicate with the DMV about these challenges and strategies for improvement. Due to their efforts, there has been a recent, and hopefully beneficial change in scheduling appointments.

Initially, applicants were only able to schedule appointments beginning at midnight every night for appointments ninety days in advance. This caused problems because there was a flood of applicants calling for appointments at the same time, in addition to the fact that many “notarios” were scheduling appointments in blocks so they could sell the appointments to applicants.

In an effort to improve the scheduling process, the DMV will now start accepting appointments at four different times throughout the day. Appointments can now be scheduled at 8:00 a.m., 12:00 p.m., 4:00 p.m. and 8:00 p.m. daily. Twenty-five percent of the appointments will be allocated to each time slot.

The contact information remains the same for scheduling appointments.

You may schedule an appointment online at: https://www.colorado.gov/apps/jboss/dor/online/appointment/scheduling/index.xhtml or by telephone at 303-205-2335.

There are several different requirements and considerations to be made in deciding whether to apply for a driver’s license under this program. Please seek the advice of legal counsel if you have any questions about your eligibility for a driver’s license under the SB251 program.

To speak to one of our experienced immigration attorneys, please call our office at (303)297-9171.

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What’s the Status of the Child Status Protection Act?

Contributed by Koby Polaski, Senior Attorney

We are all privy to the recent news regarding the horrific violence in Central America driving floods of women and children across our borders. In the midst of this tragedy, we in the immigration world can’t help but think and wonder what can be done to help these families attain legal status in the United States.

This brings to mind a section of the Immigration and Nationality Act written specifically to apply to children, which has also been in the news over the past several months. Congress passed the Child Status Protection Act (CSPA) into law in 2002, but as a result of recent litigation it can, in many cases, do very little to “protect” children.

Congress enacted the CSPA to keep intending immigrant families united despite long waiting times (in some cases up to 23 years!) in both the employment-based and family-based visa categories. The ultimate goal behind the CSPA is that sons and daughters can immigrate to the United States together with their parents.

For the visa preference categories, the CSPA provides a formula intended to minimize the number of age-outs. The CSPA formula allows the time that the visa petition was pending to be subtracted from the child’s age when the priority date becomes current. Absurdly, under this formula, the longer USCIS takes to approve the visa petition, the better. For example: assume a beneficiary’s priority date becomes current on his 27^th birthday after the visa petition was pending for 7 years. Under the CSPA formula, the beneficiary’s “age” is 20 (27 – 7). Because the beneficiary’s CSPA age is under 21, he can immigrate with his parents. Let’s say now that USCIS took 1 year, instead of 7, to approve the petition. Applying the formula, the beneficiary’s age is now 26 (27 – 1). Under the second scenario, the child will not be permitted to immigrate with his parents simply because USCIS took less time to adjudicate the pending petition. Age preservation under the CSPA is often simply a matter of luck.

In addition to the above formula, the CSPA “freezes” the ages of children in the following 3 circumstances: 1) If a United States citizen parent submits an I-130 visa petition for a child prior to his or her 21^st birthday. The age of the child here will be frozen on the date that the government receives the I-130; 2) If a parent with lawful permanent residence submits an I-130 visa petition for a child under the family-based 2A category and then naturalizes before the child’s 21^st birthday, the child’s age will be frozen on the date of naturalization; 3) if the US citizen parent files an I-130 visa petition for a son or daughter under the family-based 3^rd preference category, as the US citizen parent of a married son or daughter, and the child divorces before his or her 21^st birthday, the child’s age freezes on the date of divorce. Before the CSPA, once a child turned 21 years of age, he or she “aged-out” and was no longer able to immigrate with his or her parents. The intent of the CSPA is to freeze the age of children when their petitioning United States citizen parent submits a visa petition on their behalf; when a petitioning permanent resident parent naturalizes; or when a married son or daughter who has been petitioned by a U.S. citizen parent becomes divorced or widowed.

Finally, and most controversially, section 203(h)(3) of the CSPA, also known as the “Automatic Conversion Clause” has been the subject of extensive litigation recently. This section provides that “if the age of an alien is determined to be 21 years of age or older for purposes of (a)(2)(A) and (d), the alien’s petition shall automatically convert to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” Clearly, this section does not explicitly limit automatic conversion to a certain preference category.

In the 2009 precedent decision, Matter of Wang, however, the Board of Immigration Appeals held that the CSPA’s automatic conversion clause applies only to aged-out beneficiaries in the 2A family-based category. The Court ruled that beneficiaries of family-based 3^rd and 4^th preference visa petitions do not qualify for automatic conversion. The practical implication of this decision is that children and families who have been waiting in line for years in the 2A preference category cannot retain their original priority dates when they age out into the 3^rd and 4^th-based preference categories. 

The automatic conversion clause, therefore, benefits only a small subset of children.

Matter of Wang has been hotly litigated in federal court since its publication, and, last year went before the United States Supreme Court. In a disappointing plurality decision issued on June 9, 2014, the Supreme Court in Scialabba v. DeOsorio, ruled that the automatic conversion clause of the CSPA does not provide benefits to most immigrant families, agreeing with the BIA’s decision in Matter of Wang.

The bottom line is that hundreds of thousands of immigrant children in the United States, from those detained in Artesia to those subject to the CSPA, are essentially stranded without options through no fault of their own. The Supreme Court’s recent decision in Scialabba v. DeOsorio leaves children in the even more desperate position of needing Congress to act to clarify its intent.

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EOIR Announces Change to Immigration Judges Hearing Cases Out of Artesia

Contributed by Melanie Corrin, Partner

The United States Executive Office for Immigration Review (EOIR) announced this afternoon that it will assign all immigration cases originating at the Artesia Detention Center to the Immigration Court in Denver, Colorado.  This will certainly have an immediate effect on removal proceedings for individuals who are not currently detained. Please contact Joseph Law Firm, P.C. with any immediate questions or concerns.

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USCIS Extends Designation of Sudan for TPS

Contributed by Kim Tremblay, Associate Attorney

On September 3, 2014, the Department of Homeland Security (DHS) announced that it was extending Temporary Protected Status (TPS) for citizens of Sudan in the United States and redesignating South Sudan for TPS.

If you currently have TPS and have maintained your status, you must reregister during the reregistration period.  This period will be between September 2 and November 3, 2014.  Your status will be extended until May 2, 2016 once your application is approved.  The employment authorization document that you have will be automatically extended until May 2, 2015 while you are waiting for your new employment authorization document. 

If you do not currently have TPS or if you did not reregister during earlier reregistration periods, you may register now if you meet certain conditions.  For example, if you could not register because of compelling circumstances, you may be eligible to do so now.  You should consult an immigration attorney to determine whether you meet the conditions for late initial registration or late reregistration.

If you are a citizen of South Sudan and have TPS, you may reregister for TPS under the same process.  However, you may choose to reapply for TPS under the redesignation of South Sudan for TPS.  If you are a South Sudanese citizen who has never applied for TPS, you can also file a new application under the redesignation.  Those applying for initial registration under the redesignation can apply between September 2, 2014 and March 2, 2015.  You will have to show you have been present in the U.S. since November 3, 2014.     

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USCIS Issues Duplicate (or more) Biometrics Notices

Contributed by Melanie Corrin, Partner

The United States Citizenship & Immigration Service published an article today stating that it has recently issues duplicate (or triplicate) Application Support Center (ASC) biometrics notice.  The article indicates that if you have already been to one appointment, and have a stamped notice which verifies completion of biometrics, there is no need to go to the second appointment.  USCIS believes the reissuance of notice occurred during a system transition for generating the notices.  If you have questions, please call Joseph Law Firm and we will assist you.

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Increase in International Student Population Benefits the U.S.

Contributed by Kim Tremblay, Associate Attorney

To the chagrin of some students, the new academic year has officially begun.  An increasing number of those students are not from the United States.  Foreign students come to the United States on F-1 visas in most cases and on J-1 visas in others.  According to the Institute of International Education, over 800,000 international students attended colleges and universities in the United States during the 2012-2013 academic year; this represented a seven percent increase over the previous year.  An increase has been reported for the last seven years.   Most of these students are from China and India.  As high as that number may seem, only about four percent of the U.S.’s total student population is from abroad. 

In contrast, only about 200,000 American students studied abroad during the 2011-2012 academic year and roughly ten percent of American students study abroad during their undergraduate years.  

Thus, the U.S. benefits from brain gain and from the billions of dollars−about 24 billion last year−students spend on tuition and living expenses while in the United States

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New Driver’s License Law Fraught with Problems, Particularly for Eagle County Residents

Contributed by Koby Polaski, Senior Attorney

As of August 1, undocumented immigrants are eligible to obtain driver’s licenses under a new law passed by the State Legislature in 2013. The passage of this law was seen as exciting progress for the more than 150,000 undocumented people in Colorado who might be eligible to obtain licenses.

Unfortunately, many people, especially in certain areas – like Eagle County – might not be getting driver’s licenses anytime soon. Issues with implementation of the new law are making it difficult for potential applicants to sign up.

The first problem is that only five locations of the state’s 56 licensing centers will be issuing the cards, and each requires applicants to schedule an appointment before coming in. The five locations in Denver, Aurora, Colorado Springs, Fort Collins and Grand Junction leave many communities throughout the state underserved. For Eagle County residents, Grand Junction is the closest option and is at least 1.5 hours away. The result is that driving time alone might be prohibitive for someone without a license.

Next on the list of issues is the lengthy wait for an appointment. It is not currently possible to schedule an appointment at the Grand Junction location, as all available appointments have been booked for the foreseeable future. Many predict that potential applicants could be waiting years for an appointment.

This is a critically important bill, both for the thousands of people in need of licenses and also to ensure road safety; hopefully the legislature will figure out a way to address its rocky rollout.

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DACA Grantee Johana Mejias Welcomed to Medical School at Loyola University Chicago

Contributed by Aaron Hall, Partner

On August, 4, 2014, Loyola University Chicago Stritch School of Medicine welcomed Johana Mejias and the rest of its Class of 2018 to school.  Johana is one of seven medical students starting school at the Stritch School of Medicine there who was granted Deferred Action for Childhood Arrivals (DACA) under the Department of Homeland Security’s program which started in 2012. 

Johana arrived in the United States at age three and has lived here ever since.  Despite not having immigration status, she remained focused on her studies and has excelled at every level.  She studied cellular and molecular biology and the psychology of neuroscience at the University of Colorado in Boulder.

Johana first applied for DACA through Joseph Law Firm the day after DHS started accepting applications and was quickly approved. 

At the welcome event for the incoming medical school class, she was asked to speak and explained, “Today, what was once just a dream starts to become a reality. I find myself as part of Loyola Stritch, a loving, professional and courageous institution that believed in my ability to one day become a successful practicing physician.”  Illinois Governor Pat Quinn, U.S. Senator Dick Durbin, and other dignitaries were on hand at the event to welcome the incoming class of medical students.

Johana’s hard work and achievement are an inspiration and we at Joseph Law Firm are proud to have gotten the chance to work with her.  Johana’s story also shows the potential in our talented and driven young adults that have been granted DACA.  Grants of deferred action under DACA allow our communities to reap the benefits from the talent, passion, and creativity of these young people. 

Congratulations, Johana!  You make us proud.  We can’t wait to follow your career and see all of the great things you achieve and all of the people you will help.

-To see the press release from the Loyola University Chicago Stritch School of Medicine, click here.

-For more about the DACA program, click here. 

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Is Colorado Ready for Unaccompanied Minor Children?

Contributed by Kim Tremblay, Associate Attorney

Recently, the media has been relaying stories about the surge of children appearing at our borders; indeed, more than 50,000 minors have entered the United States since October. They are fleeing violence and poverty.  They are mostly citizens of in Mexico, Guatemala, Honduras, and El Salvador.  Many of them are deemed “Unaccompanied Minor Children” (“UAC”), individuals under 18 who lack status in the United States, who are without parents or legal guardians in the United States or without parents or guardians in the United States who can provide them with care and legal custody.

Although the state of Colorado has not seen a significant number of these children yet, there are existing systems in place to process UAC through the immigration courts and to help them with their various needs, as there are a number of UAC who arrive in Colorado every year.  In addition, the legal community, government agencies, and local municipalities are preparing for the possible arrival of  more UAC in Colorado. 

For example, some Colorado attorneys have already spent time near the border representing UAC before the immigration courts or participating in presentations and individuals screenings to ensure that UAC are aware of their rights and to determine there is any relief available to them.  Other attorneys are being trained to do the same in Colorado.

Moreover, the immigration court in Denver already has a juvenile docket set up to handle the deportation cases of minors.

In addition, the Rocky Mountain Immigrant Advocacy Network (“RMIAN”), a non-profit organization near Denver, already runs a program to represent immigrant children. RMIAN engages in direct representation, but also attempts to match attorneys with children who need representation.

Finally, cities and charitable organizations are gearing up to provide shelter, food, clothing, and even foster care for any UAC who may come our way.

Despite these preparations, it is unknown whether UAC will be sent to Colorado in great numbers. If they are, hopefully these efforts will be enough to support them adequately and to process their cases in a fair and timely manner.

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Employment Authorization Verification: A Fine Line Between Compliance and Discrimination

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs Office

The I-9 Form is an enigma among so many complex immigration forms. Employers and employees often may overlook the significance of the form and reasons why the form exists. Created in 1986, the form was intended to reduce the allure of unauthorized employment in the United States. However, a zealous employer must not only focus on the employment authorization verification section of the law, but should also be wary of the anti-discrimination requirements of the law. A recently published settlement agreement between the Office of Special Counsel (OSC) and Commercial Cleaning Systems, Inc. (CCS) reminds employers that the anti-discrimination section of the law is just as important as the employment authorization verification requirements of the I-9 Form.

Anyone who has been hired by an employer since November 6, 1986, has at one time or probably multiple times completed an I-9 Form. It is a two page form (previously only one page) in a myriad of one and two page forms that you complete as part of your hiring process. You may even have called the employer in advance asking her what you should bring with you on your first day of employment. If he or she told you to specifically bring a driver’s license and social security to verify employment without providing you with the full list of acceptable documents, the employer may actually have been in violation of the discrimination portion of the I-9 Form. While other factors may be necessary to actually pursue a claim, it can be that easy for an employer to cross the line, especially if it becomes a practice.

In the OSC settlement with CCS, CCS crossed the line when it “engaged in unfair documentary practices,” specifically “practices of over-documentation” requirements for non-U.S. citizen applicants for employment. The law governing the employment authorization verification process lays out the type of documents that an employer may accept and/or require that a new hire present for employment authorization verification and identification. INA §§ 274A(b)(1); 274B(a)(6). On your first day of work or even prior, your employer may have presented you with a list divided into three columns marked A, B, or C. Each column requests acceptable documents that establish employment authorization and/or identification. The employer should leave it up to the employee as to which of the documents he chooses to present to establish eligibility for employment. If the employee satisfies the document requirement, the employer may not request any additional documents. An employer may also not restrict the documents that an employee may provide, per the example above, or reject a valid employment authorization document with an expiration date. These practices are especially a problem if a pattern emerges of limiting requests for excessive or restrictive documentation to immigrants or persons perceived to be immigrants or foreign nationals. An employer may not discriminate in hiring and firing practices on the “basis of citizenship status or national origin.” INA § 274B(a)(1).

While an employer may think these practices are minor infractions in a good faith effort of compliance, a necessary evil, the consequences of such a practice may lead to civil fines and/or back-pay obligations. In the case of CCS, the employer was fined a total of $53,550, and required to set aside at least $25,000 “to compensate work-authorized individuals” who were not considered for a position, “denied or delayed job placement, suspension, termination, or other periods of lost work” as a result of CCS’s unauthorized hiring practices. Civil fines for unfair documentary practices or document abuse may range from $110 to $1,100 “for each individual discriminated against,” according to the Form M-274 Handbook for Employers available on the USCIS website. Discrimination in hiring on the basis of citizenship status or national origin may lead to fines as much as $3,200 per individual for first time offenders and as much as $16,000 for each individual if the practice continues.

Employers are strongly advised to regularly audit their I-9 Forms and continually train staff on proper and updated workforce compliance procedures and policies. To help in this process, we would encourage employers to seek out counsel from licensed immigration attorneys who can not only assist with the audit process but also provide direction and training to authorized representatives of the employer assigned to collect and retain employment authorization verification forms. In certain states, such as Colorado, this may include state required documentation retention procedures. The US Citizenship and Immigration Services website also provides guidance, including the M-274 Handbook and I-9 Central at http://www.uscis.gov/i-9-central.

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The Congressional Hispanic Caucus’s Eleven Theses on Immigration Reform

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs Office

In the wake of congressional “do-nothingism,” per Rep. Luis Gutierrez, President Obama announced plans on June 30, 2014, to implement additional immigration relief within the power of the executive branch before the end of this summer. The President did not provide more specifics on his intentions. However, in April, the Congressional Hispanic Caucus (CHC or Caucus) presented a draft of a confidential memorandum to Homeland Security Secretary Jeh Johnson outlining possible options within the power of the executive branch “to end the needless separation of American families” affected by immigration enforcement. The memo, which was subsequently leaked to the media, includes suggestions both on affirmative administrative relief and immigration enforcement.

The CHC offers five possible affirmative administrative relief actions that the President could execute with the “confines of the law.” The options for relief presented in the memo include the following: (1) Expansion of the Deferred Action for Childhood Arrivals (DACA) program to family members of DACA recipients who would qualify for relief per the Senate Immigration Reform Bill (S. 744); (2) Expansion of “Parole in Place” benefits to undocumented immigrants other than family members of military personnel; (3) Eligibility to adjust to permanent residence for DACA or Temporary Protected Status (TPS) recipients who travel and reenter on “advance parole” despite prior unlawful presence; (4) Expansion of Humanitarian Parole to immediate family members of DACA recipients and immediate relatives of US Citizens and Permanent Residents; and (5) Extending eligibility for enlistment in the military to recipients of DACA, TPS, Asylum, or Refugee Status under the Military Accessions Vital to the National Interest (MAVNI) program.

In addition, the CHC memorandum advises the Department of Homeland Security (DHS) to modify the agency’s “policies and practices to reflect a more humane approach to immigration enforcement.” The Caucus advocates a clarification of the “extreme hardship” standard for waivers and provisional waivers of grounds of inadmissibility, such as for unlawful presence, that incorporates prior DHS decisions and memorandums. Furthermore, the Caucus proposed an expansion of the provisional waiver to spouses and children of permanent residents. On the subject of deportation proceedings, the memorandum requested a review of enforcement priorities and a refinement of prosecutorial discretion practices to provide “case-by-case use of deferred action” and adjusting the weight of positive factors over negative factors, a limitation on “deportations without hearings” which includes expedited removals at the border, and restricting detainment of immigrants to the “highest priority cases.” The CHC likewise counseled a termination of Secure Communities to improve safety, reduce racial profiling, rebuild community trust, and relieve local law enforcement of any obligation to participate in immigration enforcement programs. As a final point, the Caucus called for improvements in “short term custody” to improve the conditions and treatment of immigrants in immigration detention facilities.

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No Comprehensive Immigration Reform in 2014, Executive Actions Imminent

Contributed by Aaron Hall, Partner

After months of languishing in the House of Representatives with only the occasional flicker of hope, it appears that the prospect of immigration reform is officially dead for 2014. 

The Obama Administration has announced that by the end of the summer, it would be implementing a new serious of executive actions.  In the summer of 2012, the administration implemented the Deferred Action for Childhood Arrivals (DACA) program as an executive action.  It is unclear if this summer’s policy changes will include an expansion of the DACA program or whether they will be different in scope and purpose. 

According to a Politico article, the White House acknowledges the risks of turning to executive authority and knows that many will complain that it has gone too far while many others will feel like it has not done enough.  The administration has not released any specific plans but has stated that it plans to “go as far as we think is good policy and is permitted under the law.”

See the Politico Article here.

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