The U.S. Department of Homeland Security released an interim final rule extending the period of Optional Practical Training from 12 to 29 months for qualified F-1 non-immigrant students with degrees in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.

E-Verify Immigration Program Draws Criticism
California is one of the few states that have implemented the E-Verify program, which verifies the legal status of job candidates for 52,000 participating employers in a handful of states could expand rapidly into the rest of the nation experts say.

Day-labor numbers dropping in Orange
New ordinances cracking down on businesses allowing day workers to congregate add to declining numbers in Orange County, CA.

Immigration deal reached
SC legislative negotiators will allow private employers to use a variety of methods to verify the legal status of their employees, including the federal I-9 Employment Eligibility Verification Form and E-Verify.

Sanford reiterates call for strong immigration bill
Currently, the SC House version of the bill does not contain any verification requirements for private employers. The Senate version contains a verification requirement for private employers, but permits it to be satisfied by using the failed Federal I-9 form verification process. The I-9 process is an ineffective system already employed by the federal government in which fraudulent documents can be used to satisfy the verification requirements, and federal law prohibits employers or states from checking the validity of the documents.

A step in the right direction
Senate Bill 2988 requires all employers in Mississippi to confirm the legal status of all new employees by using the E-Verify Program, the federal online employment verification system. The bill makes it a discriminatory practice to dismiss a U.S. citizen or permanent resident alien while retaining an employee who is illegally in our country, and makes it a felony for an illegal alien to accept or perform employment.

More employers verifying immigration status
Employers have screened about 2.5 million new hires in the first six months of fiscal 2008 through E-Verify, the Department of Homeland Security's database that determines which employees can legally work in the U.S.

59 Arrested On Illegal Working Charges At Lansdowne
The investigation started in early July 2007 after a routine inspection of all I-9 employment eligibility verification forms at the resort. Through analysis of the I-9 forms, ICE agents identified information that led them to suspect that many of the employees were using fraudulent documents or had stolen someone else's identity to secure jobs at the resort.

Feds Take Hard Line on Immigrant Hiring
On March 26, the Department of Homeland Security reissued a rule that would force companies to either resolve within 90 days discrepancies between a worker’s name and Social Security number or fire the employee. It would effectively make so-called “no-match” letters evidence of the illegal hiring.

Office of Special Counsel's Antidiscrimination Guidance for Employers Following the DHS Safe-Harbor Procedures
The Department of Homeland Security’s Safe-Harbor Procedures for Employers Who Receive a No-Match Letter offers employers who receive no-match letters from the Social Security Administration a safe-harbor in a related immigration enforcement action if those employers follow the series of steps set forth in the no-match rule to ensure that the information provided by affected employees to confirm their work eligibility is genuine.

Illegal Immigration Is A Facility Management Issue
With reform a hot political topic, changes could significantly redefine the workforce.

Kansas Immigration Bills
With the House and Senate passing different immigration bills, the focus moves to what their negotiators will draft as a final version, and some say they'll be combining measures weakened to satisfy the business community.

Measure provides incentives for firms to use E-Verify
Arizona companies that don't check the legal status of new workers would lose access to government contracts and special economic incentives under the terms of proposed legislation approved Tuesday by the Senate Appropriations Committee.

Kansas Immigration bill passes House
Among other things, the measure increases penalties for using false documents to gain illegal employment and creates the crime of helping an illegal immigrant to vote. It also creates criminal penalties for businesses that illegally treat workers as independent subcontractors.

ID checks may be forced
Businesses across South Carolina would have to check new hires through a federal work-eligibility database under some versions of the state's planned crackdown on illegal immigrants.

Department of Homeland Security’s No-Match Program Shifts Burden ...
It’s estimated that 800,000 employers could receive notices; representing a fundamental shift in how businesses are forced to handle the issue of illegal workers. The No-Match program is an enormous step in increased workplace raids looking for undocumented workers.

Immigration reform turns into a minefield for lawmakers
Immigrants break the law if they are here illegally. Businesses that exploit their cheap labor break the law. The law should be enforced.

Five IFCO managers indicted on federal charges
A grand jury has returned a six-count felony indictment against five current managers of the Pallet Management Division of IFCO Systems North America (IFCO). The indictment charges the managers with engaging in a conspiracy to harbor illegal aliens, to encourage and induce, and to transport illegal aliens.

Continuing its effort to use Social Security Administration “No Match” letters to employers for immigration enforcement purposes, the Department of Homeland Security has filed a “supplemental” proposed rule seeking to cure deficiencies of its “ Safe Harbor ” rule.

The Department of Homeland Security (DHS) knows that many employers continue to employ significant numbers of unauthorized foreign workers. Since 1986 all U.S. employers have been required to complete Form I-9 and review documents supplied by each newly hired worker to verify the worker’s identity and employment authorization. False documents using fabricated or stolen identities have evaded the effectiveness of the I-9 process.

DHS is pursuing many parallel paths to prevent the employment of unauthorized workers, including:

• Increased audits by U.S. Immigration and Customs Enforcement (ICE) of employers’ I-9 forms for existing
• Increased ICE worksite raids followed by deportation of unauthorized workers and prosecution of the employers and individual managers ICE alleges to have known the workers were illegal
• Promotion and expansion of DHS’ technically voluntary and pilot “E-Verify” electronic employment verification system through cooperation with states that are increasingly enacting laws threatening employers with loss of government contracts and state business licenses and through an imminent federal regulation that will require all federal government contractors to use E-Verify
• Clarification to employers that ignoring Social Security Administration (SSA) “no-match letters” will constitute “constructive knowledge” that affected workers are not unauthorized to work in the U.S.

The DHS proposed rule, to be published in the Federal Register during the week of March 24, 2008, relates to the last measure. DHS had planned to use SSA no-match letters in its worksite enforcement strategy, both by inserting a new ICE letter with each SSA no-match letter and by updating its I-9 regulations to clarify that an SSA no-match letter can constitute “constructive knowledge” unless the employer receiving it follows certain “safe harbor” procedures. DHS’ “safe harbor” regulation is currently held up by a court injunction in a lawsuit brought by combined employer and union interests, AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal. Aug. 29, 2007). DHS is trying to cure the legal defects pointed out by the court even while it appeals the injunction.

One of the most important defects cited by the court was the failure of the past regulation to conduct an analysis of its impact on small businesses as required by the Regulatory Flexibility Act. In the supplemental proposed rule (the “Supplement”), DHS purports to conduct that analysis, but it only assesses the cost of complying with the “safe harbor” procedures, such as “human resources personnel, certain training costs, legal services, and lost productivity.” DHS estimates the costs at between $3,000 and $34,000 per employer, depending on the number of workers employed. DHS refuses to recognize the economic costs to employers and the economy as a whole that will result from the loss of the services of unauthorized employees who end up being terminated as a result of no-match letters. DHS states that such economic costs are attributable to the twenty-year old law prohibiting employment of unauthorized aliens, “not to this rule.” The plaintiffs in the pending lawsuit will challenge this assumption and seek to continue the injunction of the revised no-match letter process.

Meanwhile, however, in the Supplement DHS has clarified that it - as well as INS before it - has always taken the “informal” position that ignoring a SSA no-match letter can constitute “constructive knowledge” of employment of unauthorized aliens. DHS portrays the new “safe harbor” regulation as an effort to provide specific guidance and protection to employers who follow its steps after receiving a no-match letter. For this reason, employers should not ignore the few no-match letters that SSA has been issuing lately and should consider what steps to take in light of no-match letters received over the past several years.

DHS continues to raid employers it suspects of knowingly employing illegal workers. In doing so, DHS frequently subpoenas employers’ SSA no-match letters from the past and evaluates them as indicators of the employer’s knowledge for purposes of prosecution and fines.

Moreover, DHS states that “[t]he rule does not affect the authority of the SSA to issue no-match letters, or the authority of the Internal Revenue Service (IRS) to impose and collect taxes, or the authority of DOJ to enforce the anti-discrimination provisions of the INA or adjudicate notices of intent to fine employers.” In addition, the rule might not limit the ability of U.S. Attorneys in the Department of Justice to use employers’ responses to SSA no-match letters in prosecutions of employers and managers, which has been increasing.

In an unfortunate and odd legal twist, DHS, reacting to court criticism that it tried to speak for other federal departments, has withdrawn statements from its rule that had reassured employers that compliance with “safe harbor” procedures would insulate them from discrimination charges by the Department of Justice’s Office of Special Counsel. The Office of Special Counsel has issued a statement about the safe harbor rule:

"However, if an employer follows all of the safe harbor procedures outlined in DHS’s no-match rule but cannot determine that an employee is authorized to work in the United States, and therefore terminates that employee, and if that employer applied the same procedures to all employees referenced in the no-match letter(s) uniformly and without the purpose or intent to discriminate on the basis of actual or perceived citizenship status or national origin, then OSC will not find reasonable cause to believe that the employer has violated section 1324b’s anti-discrimination provision, and that employer will not be subject to suit by the United States under that provision."

Employers must implement immigration enforcement measures in a manner that is consistent for all workers and is carefully timed to avoid the appearance of retaliation against workers asserting labor and discrimination protections.

Employers must not use no-match letters to terminate employers without affording them the opportunity to correct the many types of errors in SSA's database that lawful workers can suffer from, such as spelling errors, incomplete names, date order inversion, valid name changes from divorce or marriage, as well as cultural differences in name order. Meanwhile, all U.S. workers should seek to correct errors in their social security account information even aside from a no-match letter in order to reduce confusion with employers. Workers who realize their identity has been stolen should report the problem to a SSA office as quickly as possible. The pressure to correct records exerted by DHS' strategy could put a strain on SSA staffing capability.

In another odd twist, the Supplement seems to acknowledge that employers can ignore SSA no-match letters relating to "grandfathered" employees hired before November 6, 1996, when the law requiring I-9 forms was enacted.

Employers expecting SSA no-match letters once the injunction is lifted should seriously consider joining the E-Verify system, which in effect performs at the time of hire a match against the SSA database (as well as against immigration databases for workers not claiming U.S. citizenship). E-Verify currently cannot be used to verify existing workers, but using E-Verify should help avoid future no-match letters and will prepare employers for increasing requirements by state and federal governments mentioned above.

Of course, neither SSA no-match resolution procedures nor E-Verify participation can prevent effective use by unauthorized employees who have stolen a real person's identity embodied in convincing false documents. Thus, even employers using these measures must remain alert to other signs of a worker's lack of authorization in order to avoid "constructive knowledge."

Excerpted from press release:
Remarks by Homeland Security Secretary Michael Chertoff and Attorney General Mukasey at a Briefing on Immigration Enforcement and Border Security Efforts

Release Date: February 22, 2008

Secretary Chertoff:

In fiscal year 2007, ICE made 863 criminal arrests including 92 individuals who were in the employer/supervisory chain. We also made over 4,000 administrative arrests. Most of these arrests are for identity theft. And identity theft is not only a crime with respect to immigration laws, but it is a crime that hurts real people.

Let me give you some examples, some specific real-life examples of what we have done in the last year with respect to employer and employee work site enforcement actions. On February 7 of this year, 57 illegal aliens were arrested during a work site enforcement operation conducted at Universal Industrial Sales in Lindon, Utah. ICE forwarded roughly 30 cases to the Utah County Attorneys Office for criminal prosecution for offenses such as identity theft, forgery and document fraud. And the U.S. Attorney also unsealed two indictments charging a company and its human resources director with harboring illegal aliens and inducing or encouraging them to stay in the U.S. illegally.

In January of this year, a federal jury convicted a former human resources director at a poultry plant in Butterfield, Missouri of harboring an illegal alien and inducing an illegal alien to enter or reside in the U.S. Under federal statues this person faces up to 10 years in prison without parole. Another formal employer recently plead guilty to aggravated identity theft. A total of 136 illegal aliens were arrested as part of this investigation into identity theft, social security fraud and immigration-related violations at the plant.

In March of last year, 2007, a textile product company in New Bedford, Massachusetts was raided, and the owner and three other managers were arrested and charged with conspiring to encourage or induce illegal aliens to reside in the U.S. and to hire illegal aliens. Another person was charged in a separate complaint with knowing transfer of fraud human identification documents. Approximately 320 illegal workers were arrested on administrative charges as well.

And also in March of 2007, the owner of an Indiana business that performed construction services in seven Midwest states plead guilty to violation relating to the harboring of illegal aliens and was sentenced to 18 months in prison. He also forfeited $1.4 million. These are the kinds of cases that have high impact on those who would hire and employ undocumented and illegal aliens often facilitated through identity theft and document fraud.

I am delighted to say as part of our effort to continue to make it less appealing for people to break the law, we will soon publish a regulation with the Department of Justice to increase civil fines on employers as we announced last August. This is again, a way to keep that pressure up to make sure people are compliant with the law.

A couple of other brief things before I turn it over to the Attorney General. As important as it is to punish law breaking, we have got to make it easy to follow the law. There has got to be a path to legality as well as punishment for illegality. And so we want to continue to move forward, to get our no-match regulation out there. We are very close to publishing our new no-match rule, which we think will address the issues raised by the court as a consequence of an ACLU lawsuit last year, which was designed to make it impossible for us to tell employers a very simple, common sense principle that when you get information that someone may have something questionable about their social security number/identity, you should inquire further, and that you cannot hire illegal aliens. And we are looking forward to getting this issue resolved in the very near future.

Likewise, we are continuing to promote the use of E-Verify. The state of Arizona, I think, in the last couple of days had its new rule requiring E-Verify use sustained by the federal courts, and we are beginning to see that illegal workers are picking up and leaving, because they recognize this system is an impediment to their continued illegal activities and illegal employment in this country.

Nationally, we are adding 1800 new E-Verify users every week, that is the marketplace speaking. That is employers saying they want to get on board with this. We have over 53,000 employers now using E-Verify, which is more than double what we had fiscal year 2007. And more than 1.7 million new hires have been queried this fiscal year under the system. This is a good news story.

Now the federal government needs to lead by example, and in the coming weeks we are going to issue a proposed rule requiring federal contractors to use E-Verify. This will significantly expand the use of E-Verify, and continue to build capabilities that will help people comply with the law and make it harder to violate.

Finally, we need to talk about continuing to focus on those illegally in the country who are fugitives, criminals, and gang members, which we do through targeted enforcement operations again, in cooperation with the Department of Justice.

In fiscal year 2007, our fugitive ops teams arrested 30,000 individuals, double what was the case in fiscal year 2006. These teams, which we have quadrupled to 75 teams since fiscal year 2005 focused on people who have violated a judges removal order or who have criminal records. We have also expanded our criminal alien program initiating formal removal proceedings against 164,000 illegal aliens who are serving prison terms for crimes they have committed here in the United States. We don’t need to import criminals into America, we need to have them go back where they came from.

In fiscal year 2007, ICE arrested 3,302 gang members and their associates as part of operation community shield, including 1442 arrests for criminal activity. And this year we have arrested a further 723 gang members and their associates. This is focusing on people who are a threat to the safety and security of American citizens.

Employers face increasing pressure to verify worker identity
States, with Arizona in the lead, are also going after employers for hiring practices, threatening to revoke business licenses if employers do not make a serious effort to verify their workers' identities.

Lawmakers' feelings mixed on immigration bill
Mississippi bill mandates that employers use the e-verify system, a free Internet database ran by the Department of Homeland Security in conjunction with the Social Security Administration, to check a potential employee's work eligibility.

Misspissippi Passes Employer Sanctions Bill Which Criminalizes Unlawful Employment
The Mississippi Employment Protection Act requires all employers in the state to use E-Verify.

SC Governor expressed concern about pitfall immigration bill
Gov. favors requiring private employers to check South Carolina driver's licenses, a new S.C. version of the I-9, or to use the online E-Verify system. He noted that five states already use E-Verify: Arizona, Colorado, Oklahoma, Missouri and Georgia.

Measure targeting illegals shaped
The final version of South Carolina’s illegal immigration reform plan could be completed soon.

Missouri business groups fret over E-Verify bills
Businesses that don't use E-Verify and hire illegal immigrants would be punished more severely than those that do use the system.

Hearing Tuesday on Suffolk County, NY contractor law
Law that requires contractors doing business with the county to confirm employees' legal status.

UPS crackdown hits workers, spares business
A year after Washington state work-site raids, fully two-thirds of the 51 illegal immigrants arrested have either been deported or told to leave the country. But no charges have been brought against the employment agency that hired the immigrants or UPS, where they worked.

In the absence of federal immigration reform, state legislatures have passed an unprecedented amount of legislation related to immigrants in a range of policy arenas.

• The number of state laws enacted in 2007 is nearly triple that of 2006: 240 compared to 84.

• Immigration is being debated in all 50 state capitols. 1562 bills were introduced in the 50 states. Laws were enacted in 46 states in 2007, compared to 32 states in 2006.

• States are passing legislation that utilizes a broad range of enforcement and integration strategies to address legal and unauthorized immigration.

• The top 3 topics in enacted laws are identification/licenses (40), employment (29), and public benefits (33). In 2006 they were employment (14) and human trafficking (13).

• Immigration continues to being addressed in a broad range of policy arenas, including education (22), health (14), human trafficking (18); law enforcement (16); and resolutions (50).

• One state passed omnibus legislation in 2007 – Oklahoma. The bill addresses identification, public benefits, law enforcement; and employment verification, and creates a felony for harboring or transporting unauthorized immigrants. In 2006, Georgia passed omnibus legislation addressing employment, enforcement and benefits. In 2006, Colorado enacted a slate of 12 laws in special session addressing employment, enforcement, voting, and benefits, and placed two on the general election ballot regarding business deductions and suing the federal government to demand it enforce immigration laws.

• Identification/licenses laws (40 laws in 30 states) relate primarily to driver’s licenses or REAL ID, while others address professional licensing or recreational licenses.

• Employment laws (33 laws in 19 states) relate to the verification of work authorization by employers and contractors; disallowing tax deductions for unauthorized workers; and eligibility for worker’s compensation and unemployment insurance. Arizona and Illinois took different approaches to the federal work authorization database, Basic Pilot, recently renamed E-Verify. Arizona mandates the use of the pilot program, while Illinois bans its use until the accuracy has improved. The laws in Arizona and Illinois are being challenged in the courts.

• Public benefits (32 laws in 19 states) laws address eligibility and exemptions for immigrants for state funded benefits. Several laws fund programs for migrant workers. Four states set guidelines in child abduction cases where immigration or citizenship status changes may adversely affect a petitioner’s ability to remain in the United States.

The 2007 report is available at: http://www.ncsl.org/programs/immig/2007immigrationfinal.htm

Complying with immigration laws has become a critical subject. The Department of Homeland Security (DHS) increasingly has focused its immigration enforcement efforts on employers who hire unauthorized workers and during the past months has brought several high-profile enforcement actions against employers alleged to have knowingly employed unauthorized workers. Those actions, coupled with DHS's recent updating of the I-9 form and activity surrounding the no-match letters issued by the Social Security Administration (SSA), should give you reason to take notice.

HR Groups Support Bill to Create New Employment Verification System
The New Employee Verification Act (NEVA), which was introduced this week, would eliminate the I-9 Form and would require employers to use a new paperless Electronic Employment Verification System (EEVS).