H-2B and Immigration Updates
July 1, 2008
New I-9 Form for all employers effective July 1
The US Citizenship and Immigration Services has revised the Form I-9, Employment Eligibility Verification. "Technically, the revised form has to be published in the Federal Register 30 days prior to implementation, but I would suggest employers begin using the new form for all new hires effective July 1, 2008," said Ned Frazier of the Allott Law Firm. The revised form is in effect until June 30, 2009. There have been no changes to the current form, including the lists of acceptable documents.
April 21, 2008
Send DHS a Comment Today about the Social Security No-Match Rule
As you know, the Department of Homeland Security published its proposed new Social Security No-Match rule in the Federal Register on Wednesday, March 26th. The deadline to submit comments to DHS expressing concern about the rule is Friday, April 25.
If this is an important issue to you, please take a few minutes to submit a comment letter now. A sample letter is below. Be sure to include the DHS Docket Number: ICEB-2006-0004. You can mail your comments to the address below or submit them online.
SAMPLE COMMENT TO DHS
Marissa Hernandez
U.S. Immigration and Customs Enforcement
425 I Street, NW, Suite 1000
Washington, DC 20536
RE: DHS Docket Number ICEB-2006-0004
I am a business owner -- a [JOB TITLE] in a [KIND OF BUSINESS] in [CITY, STATE]. And I am writing to comment on the Department of Homeland Security's new supplemental Social Security No-Match Rule.
This renewed push to require employers to use Social Security numbers to verify that our workers are in the country legally is not a bad idea -- in theory. But it is being implemented at the wrong time, in the wrong way and without regard for the harm it could do to U.S. workers and the U.S. economy.
As an employer, I understand and accept that we as a nation will never get control of the border unless we also get control in the workplace. I understand and accept that employers like me have a role to play in this process. And I look forward to the day when the government provides me with the tools I need to determine whether the workers I hire are authorized or not.
But the Social Security No-Match system is an unworkable and ineffective tool: an inaccurate database combined with a cumbersome vetting process, overseen by an unpracticed bureaucracy.
- The new rule will hurt American workers, perhaps as many as 12 million American workers, whose records don't match because they changed their names when they got married or failed over the years to correct the SSA's inaccurate spelling of their names -- and who will now risk being terminated as a result.
- The new rule will have unintended consequences for the Social Security system, which will be overwhelmed by the volume of cases generated when the rule goes into effect and may take years to recover from the strain.
- The new rule creates just the wrong kind of incentives for business owners. It's a simple fact: the regulation targets employers like me trying to play by the rules, but does not touch my competitors who operate outside the law. If anything, it's Congress that's at fault for failing over the years to permit the legal flow of workers we need to grow our businesses. But now the rule will burden employers trying to do the right thing.
As an employer and a citizen, I want to obey the law -- I want to be able to staff my business with legal workers. But I need Washington's help.
- I need Congress to take the time to study the unintended consequences of the Social Security No-Match system before DHS rushes it into effect.
- I need Congress to move to authorize the money that's needed to improve the Social Security and DHS databases so we can build an employment verification system that works.
- I need that system to be phased in carefully and gradually -- so that we're sure it works before it is made mandatory and has the power to put me out of business on erroneous charges.
It's not just my business that's at stake -- it's the economy of my region and my state. American employers and employees deserve better.
Sincerely,
Write your Congressional representatives and oppose the SAVE Act
Introduced by Rep. Heath Shuler, the SAVE Act would make the federal E-Verify system, now used by some 55,000 business owners, mandatory for more than six million employers in just four years. It would give employers only 10 days to investigate and act on Social Security No-Match letters and would expand the definition of alien smuggling in such a careless, overly broad way that it could apply to thousands of U.S. business owners. Other provisions increase manpower and other resources on the border and expand the power of state and local police to enforce immigration law. But the bill does nothing to provide the workers the U.S. economy needs now and will need increasingly in the months ahead as we grow our way out of the economic slowdown. The House Democratic leadership has resisted taking up the SAVE Act, but the bill's sponsors are determined to force leadership's hand by circulating a discharge petition that, if successful, would require the measure to come up for a vote.
DRAFT LETTER TO YOUR SENATOR OR CONGRESSMAN
Dear XXX:
I'm a business owner -- a [JOB TITLE] in a [KIND OF BUSINESS] in [CITY, STATE].
I am writing to urge you in the strongest possible terms: please do everything in your power to stop the Secure America through Verification Enforcement Act of 2007 -- HR 4088 and S. 2368, the SAVE Act.
Most U.S. employers, no matter what kind of business we are in, want to abide by the law. Most want access to a stable, reliable, legal supply of workers. Most want the government to provide the tools we need to determine whether our employees are authorized to work or not. And we have been asking Washington to provide both things -- both the legal workforce and the tools -- for over a decade now.
Congress has failed to provide either, leaving us to make do the best we can -- struggling to stay on the right side of the law as we search for and hire the workers we need to run and grow our businesses.
And now, in a cruel twist, Congress is threatening to punish us for its own failure.
- The SAVE Act would expand the definition of alien smuggling in such a careless, overly broad way that it could apply to tens if not hundreds of thousands of employers and punish them with jail terms and significant monetary fines.
- The SAVE ACT would make the federal E-Verify system, now used by some 55,000 business owners, mandatory for more than 6 million employers in just 4 years. This despite the fact that the program's databases are notoriously inaccurate and the bureaucracy that oversees it completely unprepared for an expansion of this kind.
- The SAVE ACT would give employers and employees a mere 10 days to investigate and correct Social Security "no-match" cases brought to their attention by the federal government -- and if the mismatches could not be corrected in that time, the employer would have no choice but to fire the employee whose records were at odds. The problem with this: there are at least 17 million such discrepancies in the Social Security database, and 70 percent of them pertain to U.S. citizens who could be terminated for nothing more than changing their names when they got married or failing to correct the SSA's inaccurate records of their names.
As an employer in a sector that relies on immigrant workers, I desperately need Washington's help. I need a steady, reliable supply of legal workers. And I need an accurate, easy-to-use employment verification system, phased in carefully and gradually so that we're sure it works before it is made mandatory and has the power to put me out of business on an erroneous charge.
The SAVE Act will provide neither. It is a dagger pointed at the heart of the American economy -- at American employers, American workers, American prosperity. In the midst of an economic slowdown with no end in sight, there is already more than enough to be concerned about. Please do not make the situation worse by helping to bring the SAVE Act to the floor or voting for it.
Sincerely,
February 19, 2008
Employer compliance with immigration laws – be sure you’re in the know
In an interactive 90 minute seminar during ProGreen EXPO, immigration attorney Ann Allott and HR specialist Ned Frazier discussed new federal and state regulation changes with regard to immigration laws, as well as ideas for employers to file and maintain proper records.
Allott noted that as of December 26, employers must use a new I-9 form. This applies to new hires only. “The new form made some changes to the acceptable documents on list A,” said Allott. Additionally, employers must review Section 1 of the new I-9 and make sure it’s filled out correctly.
Allott advises employers to have new hires fill out the I-9 form and then immediately run the employee’s acceptable documents from list A or lists B and C in the E-Verify employment eligibility verification Program (formerly known as “Basic Pilot”) system. “If there’s an error message that comes back from E-verify, give the letter to the employee and tell him/her to get it fixed.” Allott says it’s reasonable to give the employees seven days to fix the error, and it’s also reasonable to keep that person employed if he/she says they want to fight the problem.
A clarification on E-verify, however: “Unless you have a contract with the state of Colorado, employers are not required to use E-verify,” said Allott. “But we recommend to all our clients that they get in the habit of using it. Though it’s still not 100% accurate, it’s currently rated at 97%, and having that info in your files will show the government good faith compliance on the part of your company.”
Frazier, an HR specialist working with Allott’s firm and other small companies, echoed the advice about E-verify. “Post the E-verify compliance on your doors and in your hiring documents,” he advised. “Informing potential employees about the rules of your company puts everything on an even footing.”
Allott noted that translators can still be used to fill out the form; the translator (who can be an employee of your company) needs to sign in the noted field on the form in Section 1.
Both Allott and Frazier encouraged good faith compliance on the part of Colorado employers. This includes getting signed up – and using – E-verify and revising company hiring procedures to ensure the I-9 and the Colorado Affirmation form are both included in the new hire paperwork.
Additionally, Frazier advises the following “5 binder” system, as follows:
Binder 1: A complete file of active employees (listed alphabetically) with their I-9 forms and the confirmations from E-verify. Retain these documents in binder 1 for as long as the individual is employed with your company.
Binder 2: A completed Colorado Affirmation form for all active employees (listed alphabetically) and the photocopies of the documents used on the I-9 forms. (Colorado law requires additional info than just the I-9 form). Retain these documents in binder 1 for as long as the individual is employed with your company.
Binder 3: Completed information for all terminated employees combining the information from binders 1 and 2. Categorize them with monthly tabs and keep this information for three years. After three years, shred the information.
Binder 4: For the problems and ‘in progress’ employees. As soon as it’s resolved, file the info in binders 1 and 2. If the employee quits, file the info in binder 3.
Binder 5: A full set of company policies, procedures and documentation about your company’s compliance with employer sanctions laws. Include memos to employees regarding the use of E-verify.
Frazier noted it’s important to keep all this information in separate files because different government entities have the ability to inspect different documents. The binder system will help employers comply with both federal and state laws. Due to security and fraud issues, these documents should be locked up or secured to avoid identity theft.
H-2B Update - January 28, 2008
As you may have heard, the Senate is going to introduce an economic stimulus package this week. Senator Ken Salazar is a member of the Senate Finance Committee and a staunch supporter of H-2B. We're being asked by our Washington contacts to write and call both Senators Allard and Salazar and encourage them again to support the H-2B bill, this time as part of the economic stimulus package. As a member of the Senate Finance Committee, Senator Salazar is even more critical to helping move this along. Use this sample letter to write to both Senators.
H-2B Update - January 22, 2008
H-2B cap met for second half of 2008
As previously reported, the U.S. Citizenship and Immigration Services (USCIS) announced Jan. 3 that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of 2008. After January 2, USCIS is rejecting petitions for new H-2B workers seeking employment in the second half of the government fiscal year (April 1 – September 30).
Grassroots is still needed – keep writing and calling your representatives
Congress came back to Washington on January 15. Since then, there have been discussions among our national green industry associations and legislators about how to best bring this bill forward to get the relief needed by seasonal businesses. Legislators still need to hear from you! We need to keep up the momentum and the pressure from businesses so they know how much you’ll need your workers this spring. Please continue to call and write to your representatives.
For more info, come visit the ALCC Booth at ProGreen EXPO this week.
H-2B Update - January 3, 2008
On January 2, USCIS announced that the H-2B cap has been reached for the second half of FY 2008. See below for the government notice. ALCC will continue to work with our national sister organizations and through grassroots efforts for relief on the H-2B returning worker exemption.
USCIS REACHES H-2B CAP FOR SECOND HALF OF FISCAL YEAR 2008
WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the second half of Fiscal Year 2008 (FY2008). USCIS is hereby notifying the public that January 2, 2008 is the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to October 1, 2008. The "final receipt date" is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the second half of FY2008.
The cap was reached with existing totals for that day. USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008.
USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:
- Extend the stay of a current H-2B worker in the United States;
- Change the terms of employment for current H-2B workers and extend their stay; or
- Allow current H-2B workers to change or add employers and extend their stay.
More information about the H-2B work program is available at www.uscis.gov or by calling the National Customer Service Center at 1-800-375-5283.
H-2B Update - December 19, 2007
On December 17, House and Senate Democrats introduced a comprehensive or omnibus spending bill totaling nearly $517 billion for the 2008 fiscal year, which began on October 1. Last night (December 18), the Senate passed the omnibus spending bill last night without any debate on the H-2B provision. Although we have been able to have our language inserted quietly in the past, it appears we were not able to do so this time. The bill will be voted on again by the House because the Senate made a change and it is expected to be sent to the president this week without H-2B relief.
Even though Congress failed to approve our straightforward measure that is so critical to employers throughout the country, the efforts by ALCC members made a very big difference. Thank you. Congress is fully aware now that Colorado employers depend on the H-2B program, and nearly all of the Colorado delegation is a bill cosponsor.
ALCC, through our national associations, will continue to work for relief and do all we can to have a bill passed as soon as possible. In the meantime, our senators and representatives will be home next week and won’t return to Washington until mid-January. Keep up the grassroots calls and remind them about the necessity of passing H-2B relief as soon as Congress reconvenes. Let them know that while members of Congress may see the issue as a political one, in the real world outside of Washington it means whether you will have a successful season or if you will have to let go of several of your full-time employees.
Thanks again for an amazing grassroots effort. Colorado has a lot to be proud of.
H-2B Update - December 11, 2007
The December 5 fly in was a great success with nearly 700 representatives from seasonal businesses around the country in attendance. Colorado had a delegation of eight from the landscape, hospitality and restaurant industries and met with eight members of Congress.
Senate Majority Leader Harry Reid (D-Nev.) said he wants to conclude the first session of the 110th Congress by December 21. We still hope to have some sort of H-2B relief before Congress adjourns; if not, the new Congress will take it up in 2008.
With the short time left, please follow up with e-mails or calls to the Colorado delegation. The message remains the same: ask them to talk to leadership to get the H-2B relief before adjournment. While the fly in succeeded in getting more cosponsors to the bill, the critical thing is to get House and Senate leadership to have it passed and be signed by the President before they adjourn. Keep contacting congressional offices and telling your local press about your effort and the critical negative results that will occur to your company, its employees, suppliers, and the community at large.
Be sure to thank the cosponsors for their support of the bill. Sample scripts are posted on the ALCC web site, http://alcc.com/Immigration.html
Contact info is as follows:
|
Member of Congress |
Phone |
Staff Person |
Email address |
House |
Marilyn Musgrave |
202 225 4676 |
Kristen Glenn |
|
Mark Udall |
202 225 2161 |
Stan Sloss |
||
John Salazar |
202 225 4761 |
Rick Palacio |
||
Diana DeGette |
202 225 4431 |
Andrew Ginsburg |
||
Doug Lamborn |
202 225 4422 |
Dan Nordberg |
||
Tom Tancredo |
202 225 7882 |
Andrew Good |
||
Ed Perlmutter |
202 225 2645 |
Matt Henken |
||
Senate |
Wayne Allard |
202 224 5941 |
Suzanne Singleterry |
|
Ken Salazar |
202 224 5852 |
Beatriz Ibarra |
We will only be successful if you continue your efforts to be heard.
DHS Appeals Injunction to Social Security No-Match Rule
reprinted with permission from PLANET.
H-2B script for Owners/Managers
Ask to speak to their staff person in charge of immigration. Tell them about your company and how important the H-2B program is to your business. Describe the impact of not getting H-2B workers this year and ask them to work to pass an immediate extension of the H-2B returning worker exemption that expired on Sept. 30.
My name is __________ and I can calling from __company___ , located in city. Our company uses the H-2B visa seasonal guest worker program which has two 6 month caps. The cap for the first half of fiscal year 2008 was reached in September. The cap for the second half of the fiscal year, which begins on April 1st, will be reached very soon, which means I will not be able to hire H-2B workers.
For the last three years Congress has passed legislation that exempts the returning workers from the cap. Please work with your party leadership to get an immediate extension of the H-2B returning worker exemption passed and signed into law before Congress adjourns for the year. The “Save Our Small and Seasonal Businesses Act of 2007” (House Bill H.R. 1843, and Senate Bill S. 988) would extend the returning worker exemption. For more information about these bills, you can contact Senator Mikulski or Representative Stupak.
Tell the staff person what will happen to your company, your employees and other local businesses if the returning worker exemption is not extended quickly.
H-2B script for Employees
Ask to speak to their staff person in charge of immigration. Tell them about your company and how important the H-2B program is to your business. Describe the impact of not getting H-2B workers this year and ask them to work to pass an immediate extension of the H-2B returning worker exemption that expired on Sept. 30.
My name is __________ and I can calling from __company___ , located in _____. Our company uses the H-2B visa seasonal guest worker program which has two 6 month caps. The cap for the first half of fiscal year 2008 was reached in September. The cap for the second half of the fiscal year, which begins on April first, will be reached very soon, which means my company will not be able to hire H-2B workers.
For the last three years Congress has passed legislation that exempts the returning workers from the cap. Please work with your party leadership to get an immediate extension of the H-2B returning worker exemption passed and signed into law before Congress adjourns for the year. The “Save Our Small and Seasonal Businesses Act of 2007” (House Bill H.R. 1843, and Senate Bill S. 988) would extend the returning worker exemption. For more information about these bills, you can contact Senator Mikulski or Representative Stupak.
Tell the staff person that you work for the company year round, but that the success of the company and your job depend on being able to hire guest workers for the busy spring season.
November 13, 2007
I-9 Form change information
As of November 7th, the I-9 form with the revision date of June 5, 2007 is the only version of the form that is valid for use. However, the Department of Homeland Security will publish a Notice in the Federal Register that gives employers 30 day from the date of publication to transition. The last three questions on the fact sheet have been clarified to note the new effective date and that penalties for not using the new form will go into effect after that 30 day window. Click here for full information: http://www.aila.org/content/default.aspx?docid=23820
Recent Media exposure on the benefits of H-2B to employers
An ALCC member had great exposure in a recent online column by former Denver Post columnist Jim Spencer. Click here to view. http://spencerspeaks.com/2007/11/09/with-visa-impass-uncertainty-grows-for-legal-workers-employers/
October 10, 2007
The federal judge in the Social Security no-match litigation has issued a preliminary injunction blocking implementation of the rule until the Court has the chance to fully examine all the issues.
The judge who issued the preliminary injunction, which is fairly rare, indicated that the plaintiffs have a high probability of succeeding on one or more of the four legal theories that underpin the lawsuit.
What will be the practical effect of the preliminary injunction? There may be effort by the government to push for an expedited appeal. In any case, however, the rule is likely to remain in limbo for several months at least, until the court issues its final ruling.
While this is very good news, this is no time to sit down and rest. The only solution to the structural problem at hand is passage of legislation. If, for example, the court finds that the government violated the Regulatory Flexibility Act, it may be possible to complete the proper analysis in a matter of a few months. So, collectively we must redouble efforts to secure legislative reform. The primary near-term opportunities are the H-2B return worker exemption, and AgJOBS.
Reprinted from the American Nursery & Landscape Association
Information: H-2B Use in Colorado
- Colorado is the second highest H-2B user in the country behind Texas. Of the available 66,000 visas, nearly 20 percent are used in the state of Colorado. And, nearly 7 percent of the total visas available nationwide are for Colorado’s landscape industry. This is solid evidence of our state’s economic reliance on seasonal labor in general, and H-2B workers specifically.
- Colorado’s green industry contributes more than $2 billion to Colorado’s economy, which is 17 percent of the total revenue for the entire state. The green industry also employs more than 40,000 individuals.
- The current bill renews the returning worker exemption. This means that anyone who has worked in the US in the past three fiscal years will not count toward the cap in the next fiscal year. The current bill is set to expire September 30, 2007. If the bill is not passed, the fiscal year split and the returning worker exemption will be eliminated.
