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

A Happy Ending

One of the things that I enjoy most about my job as an immigration attorney is seeing how our work changes people’s lives.  Recently, I had a particularly moving case that reminded me of how lucky I am to be doing what I do.

A young lady came to see us a few weeks ago.  She was a United States Citizen who had successfully filed a visa petition for her husband.  Because he originally entered the United States without a visa, she had also filed a separate petition to forgive this offense.  Both were approved after she successfully established that she and her children would suffer extreme hardship if her husband were denied a visa to the United States. 

About a year and a half ago, her husband went to the consulate in Mexico to receive his visa.  When he arrived he was told that the government had made a mistake and that instead of a visa he was going to receive a permanent bar from ever returning to the United States. 

This young lady was desperate.  She was unable to join her husband in Mexico as she had a shared custody agreement with a child from a previous marriage and was not allowed to move her child out of the country.  Also, the wife suffered from various medical illnesses and needed to keep her  steady job  with accompanying medical insurance in the United States.  Thus, the wife was separated from her husband and the couple’s three minor children (who were also all United States citizens) were separated from their father. 

Without her husband, this young lady’s life and family were falling apart.  She was forced to file for bankruptcy.  She lost her home.  She and her three children moved into a small basement apartment.  She had to take time off of work to find suitable child care.  The stress caused her health issues to flare up and she had to be hospitalized.  The children did not understand where their father was or what was happening and their performance in school began to suffer.  This young lady contacted Senators, she hired attorneys to try to work with the consulate, she wrote letters, yet the response she received each time was that nothing could be done.

After the wife came to see us, we immediately filed a petition for review in federal court as a permanent bar never should have been applied to this individual.  We asked that a federal judge review the mistakes that had been made at the consulate to separate this family.  About two weeks after filing the lawsuit, the husband was rescheduled for another interview at the consulate and was given his US visa.  I will never forget the gratefulness in the wife’s voice when she thanked me for reuniting their family.  We at Kuck Immigration Partners are truly fortunately to be able to do what we do.

I-9 Immigration Compliance-How to Advise Employers

On September 30, 2013, the Department of Homeland Security (DHS) ends its fiscal year.  As we look back on 2013 we will see that Immigration Customs and Enforcement (ICE), the principle investigative arm of DHS, continues to focus on employer compliance.  According to reports, ICE audited over 3,000 businesses in 2012. How does that compare to prior years? In 2007, ICE conducted 250 workplace compliance audits, 2008 that number doubled to 503. In 2009 the amount of I-9 audits more than doubled to 1,444, 2000 in 2010 and 2,496 in 2011. From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million.  Statistics released by ICE in July 2012 reveal that overall $87.9 Million in fines have been imposed on employers for violations. In 2012 there were 520 criminal arrests tied to worksite enforcement investigations.  Criminal charges range from harboring to knowingly hiring illegal aliens.  Statistics for 2013 are expected to be released January 2014 the numbers for are only expected to be higher.  

According to ICE their investigations are based on leads and tips obtained from a various sources.  While ICE claims that investigations are primarily focused on critical infrastructure and key resources, no industry, regardless of their size, type or location is excluded from complying with the law or being the subject of an ICE audit.  No business is exempt. The inspection process is initiated by issuance of a Notice of Inspection (NOI), which compels the employer to provide its Forms I-9 for inspection.  How do you advise your clients to best safeguard their business should ICE come knocking at their door?

The Immigration Reform and Control Act (IRCA) of 1986, 8 U.S.C. § 1324, 8 C.F.R. §§ 274a.1 et seq requires all employers to verify the identity and work eligibility of all employees hired after November 6, 1986.  IRCA established criminal and civil penalties for knowingly employing unauthorized workers.  8 C.F.R. § 274a.2 defines the Employment Eligibility Verification Form I-9 as the means of documenting this verification. Employers are required to maintain for inspection original Forms I-9 for all current employees.  For former employees, IRCA requires that employers retain Forms I-9 for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.  Often, ICE will request the employer provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses.  

The key to compliance is properly filling out and maintaining Form I-9.  There have been several versions of the Form I-9.  Effective May 8, 2013, 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”.  The use of the new version of Form I-9 is mandatory.

Countless blogs, articles and seminars provide guidance regarding the most complex 1-page Form I-9.  The government has even printed a 70 page Handbook for Employers M-274 just to deal with Form I-9.  Here are 10 suggestions:
  1. Have a comprehensive I-9 audit performed by a knowledgeable professional who actually practices in this area of the law.  Often employers decide to perform their own audits without having the proper training or background.  Don’t engage in self audits without prior training.
  2. Read the M-274 Employer Manual.
  3. Assign a specific individual or group of individuals who will be responsible for filling out and maintaining the Form I-9 including an employee who will supervise the staff and the I-9 process. 
  4. After an audit of the existing I-9s is completed and all errors have been noted and reported, review the findings. Be trained on correction procedures before starting the correction process.  
  5. Develop a written Immigration Compliance Policy.  Complex? It doesn’t have to be. It’s a policy that lays out the steps the company takes to be compliant.  ICE will request this document should they ever come knocking.
  6. Fill out the Form I-9 within 3 days of employment.
  7. Don’t violate discriminatory practices by asking an applicant to complete an I-9 before making a job offer.
  8. Review each employee’s documents to be certain they’re on the new version of the list of acceptable documents and that they appear genuine. Don’t ask new hires for specific documents or more documents than the I-9 requires.
  9. Make and retain copies of all I-9 documentation provided.
  10. Follow up on expiring documents that limit the employee’s authorization to work.

Stay in the loop on all changes related to this area of the law because failure to comply with IRCA’s I-9 rules can result in significant penalties, fines, loss of business, criminal charges and imprisonment.  

Georgia Businesses and E-Verify--The Perfect Storm Has Arrived

As a business owner, one of your most important jobs is having the “right” person on board, in each of the specialty occupations in your business.  Whether it’s an office manager, billing coordinator, office or factory workers, or even landscaper, each position is integral to running an effective operation. It is also common knowledge, particularly in large cities, that getting the “right” staff can be almost impossible, given the dearth of applicants for many of these jobs.  Obviously, employers also want to ensure that all employees are legally authorized to work in the United States.  Starting July 1, 2013, the Georgia legislature wanted to ensure that all new hires for Georgia’s restaurant are, in fact, legally allowed to work. 

Under current Georgia law (effective July 1, 2013) all Georgia employers with more than 10 employees on January 1, are required to enroll in the federal E-Verify program. This new law will supposedly be enforced by requiring the E-verify registration information be provided as part of the business license renewal process for 2014 business licenses.   Nonetheless, it is quite clear that only a relatively small percentage of Georgia employers have enrolled in E-Verify.  

As of 2008, the Small Business Administration estimates that there were more than 179,000 employers in Georgia.  While that number may have shrunk since then because of the recession, no where near that many companies have signed up for E-Verify.  As of September 17, 2013, only 28,081 Georgia employers had enrolled in E-Verify, which is less 20% of Georgia's employers.  Although there is no current way to see how many of Georgia’s 179,000 employers have more than 10 employees, there is certainly more than 28,081 of them.  Simply put, non-compliance is rampant under this new law.

What Georgia’s E-Verify requirement means for compliant employers is that they remain at a competitive disadvantage against those employers who do not have to comply, or who refuse to comply with this requirement (which is not the purpose of the law).   It also means that people who might be working in the  without an E-Verify check will find it hard to obtain new work from an employer who has complied with the law (which is the purpose of the law).  None of these facts make us conclude that E-Verify is bad, but it is obvious Georgia’s E-Verify law is a badly thought out idea, with difficult consequences for employers who actually comply with the law. 

Georgia intends to enforce the E-Verify requirement by requiring employers to sign an affidavit on E-Verify enrollment requirements when obtaining a renewal of the business or occupational tax license. Above all else, remember that E-Verify is only to be used to verify NEW employees.  It cannot be used to check the documents or status of current employees, as of the date of enrollment  If you are unsure of whether you are required to comply with Georgia’s new E-Verify rules, or how to use the E-Verify system, call us today and see what options, if any, are available to you.  E-Verify is now the law in Georgia.  It is a best practice to ensure that your business is compliant with this new Georgia Law. 

Post - 9/11: A Moment to Discrimi... Reflect

Today we pause to remember the tragic events that took place 12 years ago. No matter how many years pass between us and September 11, 2001, it forever remains a vivid memory in our minds and hearts. It stays with us as constant reminder that bad things happen to good people. That tragedies we hear about happening across the globe can take place at home too. That we as a nation are not immune from acts of hate directed towards us from within, and abroad. Of course we also realized that our vulnerability as a nation correlates directly with our love and unity, because as much sorrow we experienced, 9/11 also drew us closer and strengthened our resolve. It made us appreciate the fragility of life and reminded us to be humble. It reminded us of how much we as Americans have to be proud of, the extent of our values that need our protection.

And in the years just after 9/11, we recall the aftershocks that shook us to our core. That trampled over the very essence of our identity as a “land of the free”. The civil liberty violations in the name of national security were overlooked by some and justified by most. However others of us were not fortunate to have the luxury of ignoring them. Our last blog post by our Partner Danielle Conley is a perfect example. U.S. Citizenship and Immigration Services (USCIS) somehow succeeded in covertly developing and implementing a program now known as CAARP ("Controlled Application Review and Resolution Program”). This program uses religion and national origin to in essence “blacklist” individuals seeking immigration benefits. Dubbed by some as “Muslims Need Not Apply”, this program was one of 9/11’s aftershocks, denying and delaying applications for citizenship from otherwise eligible members of the Arab, Middle Eastern, Muslim and South Asian communities. Law abiding, tax paying citizens striving to take the oath and pledge allegiance to the United States are discriminated against blatantly yet secretly, by a program not even authorized by Congress. Members of these communities as well as the immigration attorneys that represent them knew this program existed, but most of us just didn’t realize the baby was given a formal name until the report recently published by the ACLU SoCal that uncovered the program and dissected it here for the world to see.

12 years after the earthquake and we still feel the aftershocks. The PATRIOT Act is still alive and well. Thanks to the NSA we can all take it for granted now that our phones are tapped and our emails are checked. It makes me wonder whether our America is the same America our forefathers dreamed of and strived for. It raises the question whether the very efforts we implement to secure us ultimately redefines us, beyond recognition. 

A dozen years later and we can now say that we successfully learned two lessons: 
1) We have enemies abroad that “hate us for our freedom”
2) Sometimes we can be our own enemy by yanking our freedoms out from their roots in the name of preventing the weeds.

Ben Franklin is often quoted as saying: “People willing to trade their freedom for temporary security deserve neither and will lose both.” As a proud American and fervent defender of our Constitution, I pray and hope that our actions protect both because we cannot afford to lose either.

What is the CARRP?

Have you ever heard of CARRP?  

Most people have not, but you should definitely educate yourself if you are an immigrant to the United States coming from an Arab, Middle Eastern, Muslim or South Asian background.  CARRP stands for the Controlled Application Review and Resolution Program, and it is meant to delay and deny naturalization, green card, and other applications without proper legal authority.  

If you have attended numerous InfoPass appointments and the only response you ever receive is that your application is still awaiting “standard” background checks, think again.  Your application may very well be subject to the CARRP security program simply based on your national origin, religion, or affiliations.  A report on the findings of the CARRP program was released August 2013, and can be found HERE.

The question is then, what can be done?  How can an applicant force USCIS to adjudicate and approve an application that has been blacklisted by a program that flies in the face of statutory eligibility to become a United States citizen or Lawful Permanent Resident?  The answer is to sue the U.S. government and force them to remove your application from an indefinite holding pattern.  

Many clients question whether filing a lawsuit will just elicit a retaliatory denial, or even if it will work at all.  The answer is that it will work because the federal court knows that an outright discriminatory program will never support a basis for denial.  

So, what is the next step?  Stop waiting for USCIS to never make a decision, and contact me, Partner Danielle Conley at or at 866.286.6200 to find out more!