Zulkie Partners

In late September, a federal district court blocked certain portions of Alabama’s controversial immigration law, HB 56, from taking effect, ruling that there is a substantial likelihood that the U.S. government can establish that the provisions are preempted by federal law. The provisions upheld, however, include those that authorize local police to inquire about a driver’s immigration status during routine traffic stops or arrests if reasonable suspicion exists that the person is in the United States illegally; and requires public schools to verify students’ immigration status. The law also provides that undocumented foreign nationals can be charged criminally for willful failure to carry federal immigration papers, and any contracts entered into by an individual who is undocumented as well as transactions between any division of the state and an undocumented immigrant are legally nullifiable. The Department of Justice  (DOJ) sought an emergency stay of the decision at the 11th Circuit Court of Appeals on October 7^th.

While the status of the law remains uncertain, its effects are already being felt.  Many undocumented immigrants are fleeing the state, workers are no longer reporting to their jobs, and undocumented children (and children of undocumented parents) are no longer attending classes. In requesting the emergency stay, the DOJ claimed that the new law was highly likely to expose persons lawfully here, including schoolchildren, to new difficulties in their daily affairs, and that the legislation could impact diplomatic relations with foreign countries. DOJ set up a hot line to report potential civil rights concerns related to the impact of Alabama’s immigration law.  Call 1‐855‐353‐1010 or email hb56@usdoj.gov.

While clearly one of the most draconian new state laws, the National Conference of State Legislature reports that from January 1 to June 30, 2011, 40 state legislatures have passed 151 immigration-related laws and 95 resolutions.

State and local governments continue to be the staging ground for real action on immigration reform while Congress does nothing. Conservative state legislatures have enacted draconian, restrictive immigration laws (Arizona, Alabama, Utah, Georgia, and South Carolina) that, in some cases, are winding their way through the courts, while other states have moved in the direction of enacting more liberal policies toward immigrants. Most recently, the governors of Illinois and California signed into law “DREAM Act” bills that would allow undocumented immigrants to receive private funds to attend state colleges and universities. The same issue will go before the Maryland electorate as part of a referendum in November 2011.  And the courts, state as well as federal, continue to enter the fray. In Texas, a district court recently barred the Texas Department of Public Safety from enforcing rules that denied driver’s licenses to immigrants living and working in Texas with valid work authorization.  In Georgia, a federal district court blocked key provisions of that state’s “Show Me Your Papers” law, granting a preliminary injunction in the suit filed by a coalition of civil rights groups and individual attorneys.

In the absence of a federal approach to immigration reform and continued congressional inaction which is expected until after the next presidential election, we can expect more of the same from state and local governments as they attempt to regulate immigration and address the strain our broken immigration system causes to their communities.

U.S. Citizenship and Immigration Services (USCIS) has launched I-9 Central, a new online resource center dedicated to the most frequently accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification. The website provides employers and employees access to resources, tips, and guidance on completing the I-9 and understanding the I-9 process.

I-9 Central includes sections on employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. The site also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the I-9 process.

On April 11, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction against key and controversial provisions of Arizona’s SB 1070, the law enacted nearly a year ago that requires police to demand proof of immigration status from anyone who they have a “reasonable suspicion” of being in the country illegally. The court thus denied Arizona’s appeal of a U.S. district court’s July ruling that prevented segments of the law from going into effect because it was likely that the law violated the U.S. Constitution. Moreover, and significantly, the decision signals that the appeals court believes that the Department of Justice (DOJ) is likely to succeed in its challenge to the law’s constitutionality.

SB 1070 is the draconian state immigration law that was signed into law on April 23, 2010, after Arizona state legislators argued that they needed their own immigration enforcement tools to stem the tide of undocumented immigration into the state. Federal efforts, the state argued, were not enough. The law immediately sparked nationwide boycotts and protests as an unconstitutional attempt to usurp the federal government’s right to enact and control immigration law and as a way to set the stage for abusive and illegal police activity, including profiling. DOJ sued and won an injunction on June 29, 2010, the day before the law was originally set to go into effect.

In its ruling, the Ninth Circuit rightly rejected Arizona’s claim that state police have “inherent authority” to enforce federal immigration laws; in fact, the court held that Arizona’s attempt to drive immigrants from the state interferes with the federal government’s exclusive authority to enforce immigration law. Congress, the court held, intended state officers to “aid in immigration enforcement only under the close supervision of the Attorney General,” which was not the case here. The court also recognized that the SB 1070 has negatively impacted U.S. foreign relations and reflects the dangers of allowing states to enact a patchwork quilt of conflicting laws and regulations. In the immediate aftermath of SB1070’s enactment, a number of states considered or introduced copycat bills, but most states have now backed away from these measures.

While the fate of SB 1070 is likely to be decided by the Supreme Court, for now the court’s decision is a victory not only for the Obama Administration in its ongoing effort to halt the Arizona law, but also for equal justice and the rule of law.

The United States Citizenship and Immigration Services (USCIS) has published a notice in the Federal Register announcing that the new E-Verify Self Check feature will go into effect on March 18, 2011. As previously reported, the E-Verify Self-Check initiative will enable individuals to check their work authorization status prior to being hired and facilitate correction of errors in the federal databases which E-Verify utilizes. Self Check was developed primarily to address concerns with the current employer-focused E-Verify process, where employees have very limited ability to identify, access or correct information that may ultimately lead to a tentative nonconfirmation (TNC). Self Check promises to provide an easy method for individuals to check their own employment eligibility status outside of the normal E-Verify process, and thereby reduce the likelihood of TNCs.

How will Self-Check work?

E-Verify Self Check will involve two broad steps (with a few others underneath): (1) Identity authentication of the individual and (2) an E-Verify query to confirm the individual’s current work authorization status. Here’s how it will work:

Step 1 – Identity Check

After browsing to the website, the individual will be asked to enter some basic identifying information, including name, address of residence, date of birth, and Social Security number (optional). After the information is entered by the individual, it will be submitted to a 3rd party identity assurance service (IdP) to generate a minimum of 2 “knowledge-based” questions that only the individual would be able to answer. If the individual is able to answer the questions, his or her identity is “authenticated”, and a pass indicator is sent to E-Verify (proceed to step 2).  If the individual is unable to answer the questions or if there is not enough commercial identity verification information from financial institutions, public records, and other service providers to generate the questions, the individual’s identity cannot be authenticated and he will not be able to continue through E-Verify Self Check.

Step 2 – E-Verify Query

Once the individual has successfully completed the identity proofing quiz, he or she will be able to run an employment eligibility query to determine work eligibility status. The name and date of birth provided in Step 1 will be pre-populated and cannot be changed (for security reasons). The individual will then be required to enter additional information based on the documentation the person would present to an employer for the Form I–9 process. The additional information collected from an individual depends on citizenship status and could include: Alien Number (if non-citizen); passport number; Form I-94 number; and/or lawful permanent resident card or work authorization document (EAD) number. Sound familiar? That’s because  this is the same information that is collected for the Form I-9 process and the basic E-Verify query.

E-Verify Self Check will then contact the E-Verify system through a web service connection and will present one of three results: (1) Work Authorization Confirmed; (2) Possible mismatch with SSA Information or (3) Possible mismatch with Immigration Information. If the individual receives the SSA or Immigration mismatch, E-Verify Self Check will prompt the individual whether he or she would like to resolve the mismatch or not. If the individual chooses not to resolve the mismatch, E-Verify will close the case. If the individual chooses to resolve an SSA mismatch, a form will be generated that contains the individual’s first and last name, the date and time of the E-Verify query, the E-Verify case number, and detailed instructions on how to resolve the mismatch. If the individual decides to resolve an Immigration Information mismatch, E-Verify Self Check provides instructions to contact E-Verify Customer Contact Office (CCO) to assist in the correction of immigration records 72 hours after the initial query to speak with a status verification representative. If the representative is unable to correct the record, the individual will be advised of actions necessary to correct the error.

Security and Privacy Concerns

When Self-Check was first announced, many organizations expressed concerns over the security and privacy of the individual’s personally identifiable information (PII) which is transmitted during the process. To address some of these concerns, the DHS system of records for Self-Check includes the following safeguards:

• The questions asked by the IdP and the answers provided by the individual are not provided to USCIS.
• If an individual fails the identity authentication portion of E-Verify Self Check and therefore is unable to proceed to an actual query in E-Verify, none of the information listed above is provided to or retained by E-Verify Self Check.
• Only the transaction number, the reason for failure, the date and time of the transaction, and error code are retained by the IdP to facilitate troubleshooting and system management.

It’s worth noting, however, that there are many other “routine” disclosures of this information which could be made outside of DHS.

Employer Concerns

While the launching of Self Check has the potential to reduce the number of TNCs, it still remains to be seen whether individuals will choose to use it, and if they can easily correct inaccuracies in the government databases. In addition, there is also a concern that some employers may be tempted to require their employees to use self-check prior to applying for a job. This would almost certainly constitute pre-screening, which would run afoul of the anti-discrimination provisions of E-Verify. Therefore, it’s important for employers to remember that E-Verify can only be used for new hires (or existing employees pursuant to FAR rules) once an offer has been extended and accepted and an I-9 form has been completed. As always, implementing training and clear policies are vital to ensure compliance with these changing rules.