Unfortunately, prevailing wage determination requests to the US Department of Labor remain under suspension with no indication of when they will resume. Due to federal litigation, the Department of Labor is under a court order to reissue a large number of H-2B wage determinations. They report that they are using all their resources to comply with the court order and therefore all other prevailing wage determinations are under suspension. The American Immigration Lawyers Association is attempting to obtain information regarding what, if anything, can be done in time sensitive cases.
Good News for College Professors and Teachers
In a recent decision, the Board of Alien Labor Certification Appeals (BALCA) held that the required journal ad for a special handling labor certification application does not have to be a print ad. Specifically, BALCA determined that an ad placed in an electronic journal filled the requirements of 20 CFR §656.18(b) of placing an ad in a “national professional journal”.
Half of 2011 California DREAM Act Signed into Law
On July 25, 2011, Gov. Jerry Brown signed a California bill (AB 130) that would allow undocumented immigrants to receive privately funded scholarships to attend state colleges and universities. AB 130 is set to take effect on January 1, 2012. The second half of the California DREAM Act (AB 131) would expand AB 130 to include some state-sponsored financial aid, which undocumented students are currently ineligible to receive. AB 131 is still in legislative committee.
Colorado General Assembly 2011 Session Immigration Legislative Summary
The 2011 session of the Colorado General Assembly drew to a close in early May after months of tough decisions for lawmakers. The session saw a host of immigration bills and resolutions. Certain anti-immigrant bills would have negatively impacted individuals who are lawfully present in the country or targeted marginalized migrant populations in Colorado. The constitutionality of other bills was questionable in the larger context of federal immigration law, and some bills would have hiked state and local spending without generating tangible benefits to local communities. Debate on these bills was emotional and lengthy. Representatives from agriculture, tourism, hotel, lodging, and restaurant industries spoke out in opposition to some of the proposed legislation.
Almost all immigration-related bills and resolutions this session – including provisions that would have authorized police to require proof of citizenship or lawful presence upon a vehicle stop, increased bond requirements for arrested individuals who were suspected of being undocumented, and complicated voter registration – were summarily rejected by the Legislature.
HB11-1003: Define ID for Voting
This bill would have required a government- issued photo ID for election-related purposes. It was postponed indefinitely in the Senate.
HB11-1088: Bond for Persons Illegally Present
HB 1088 would have increased disincentives for bail bondsmen to provide bail to arrested people who might be undocumented, and would have required advising the court and district attorney before bail being set if there were reasonable grounds for believing the defendant might be undocumented. The bill was postponed indefinitely in the Senate.
HB11-1107: State Illegal Immigration Enforcement
An omnibus immigration bill, HB11-1107 echoed much of the Arizona approach to immigration issues in employment and law enforcement found in Arizona SB-1070. One provision authorized police to contact anyone they suspected of being an illegal immigrant, while another required lawful immigrants to carry their papers on them at all times. The bill was postponed indefinitely in the House.
HB11-1140: Strengthening Illegal Alien Laws
HB11-1140 would have sanctioned local governments that did not participate in the Secure Communities program. Postponed indefinitely in the Senate
HB11-1252: Proof of Citizenship for Voter Registration
This provision would have directed the Secretary of State to compare public databases and determine if there was evidence indicating registered voters were not citizens. Voters notified by the Secretary of State that there was evidence indicating they were not citizens would be obliged to prove citizenship. The bill was postponed indefinitely in the Senate.
HB11-1309: Prevent Unlawful Employment & Human Smuggling
Another omnibus immigration bill addressing employment and law enforcement issues, HB11-1309 was postponed indefinitely in the Senate. Among its objectives, HB11-1309 sought to criminalize stopping and blocking traffic to hire and pick up passengers for work at a different location, and would have made any record related to a person’s immigration status admissible in a court without further foundation or testimony from a custodian of records.
SB11-054 Authority to Arrest Unlawful Aliens
SB11-054 would have authorized police officers to make arrests without a warrant if the officer had probable cause to believe that the individual was in violation of certain immigration provisions. It was postponed indefinitely in the Senate.
SCR11-002 Voter Registration Proof of Citizenship
This Senate Concurrent Resolution would have referred to the voters a state constitutional amendment providing the same citizenship investigation of registered voters as set out in HB11-1252, above. The resolution was postponed indefinitely in the Senate.
SCR11-003 Elected Official Proof of Citizenship
SCR11-003 would have referred to the voters a state constitutional amendment providing that anyone elected to public office in the state of Colorado must provide proof of citizenship along with the oath of office. Postponed indefinitely in the Senate.
SCR11-004 Require Employers Use E-verify
This bill proposed an amendment to the state constitution that would have required all private employers in the state to use the federal E-verify System for establishing eligibility for employment and set out significant sanctions for employers found in violation. Postponed indefinitely in the Senate
First-Ever Senate Hearing on the DREAM Act
In an important step forward, the Senate held its first-ever hearing on the DREAM Act. The DREAM Act allows many young immigrants, who have grown up in the United States, the opportunity to become permanent residents of this country. The hearing highlighted the fact that many of these individuals are top students and aspire to be professionals and entrepreneurs in this country as well as serving America by enlisting in the military. The lack of a path to permanent residence for these individuals puts them in a “dead-end” position in the United States. As a country of immigrants, we need to empower these individuals to become full-contributing members of our society. Hopefully, the hearing will have a positive impact on the passage of this important legislation.
ICE Prosecutorial Discretion
Director of Immigration and Customs Enforcement (ICE), John Morton, recently issued a Memo outlining guidance to ICE agents and attorneys on exercising prosecutorial discretion. Specifically, he stated that ICE personnel may exercise prosecutorial discretion based on certain factors, including how long an individual has been in the U.S., what the individual’s status has been during his/her time in the U.S., circumstances regarding the person’s arrival and stay in the U.S., the individual’s education while in the U.S., the individual’s family ties to those with lawful status in the U.S., the individual’s immigration history, the individual’s criminal history, and the Agency’s immigration enforcement priorities, among other factors. Director Morton also clearly stated that no individual has a right to prosecutorial discretion.
H-1B Cap Update
USCIS reports that as of June 17, 2011, 16,300 H-1B petitions have been receipted for the regular allotment of 65,000. Additionally, 10,800 H-1B petitions have been receipted for foreign professionals with advanced degrees, out of the available 20,000.
1,000 New ICE Notices of Inspection
Immigration and Customs Enforcement (ICE) announced June 15, 2011 that it will audit 1,000 new companies nationwide. This continues the government’s trend to use the I-9 audit process to check on employers’ compliance with employment eligibility verification requirements and impose costly penalties. For more information, see http://money.cnn.com/2011/06/15/news/economy/immigration_ice_audits/index.htm?iid=H_SB_News
If your company has received an ICE I-9 Notice of Inspection, contact Stern & Curray for an experienced response. If your company has not yet been the target of an ICE audit, contact Stern & Curray for a proactive review of your I-9 compliance strategies.
U.S. Government Unveils New Multi-Agency Initiative To Combat the Unauthorized Practice of Immigration Law (UPIL)
The U.S. government has unveiled a new initiative to combat the unauthorized practice of immigration law (UPIL). The unauthorized practice of immigration law occurs when a person gives legal advice who is not an attorney or accredited representative. The Department of Homeland Security (DHS), the Department of Justice (DOJ) and the Federal Trade Commission (FTC) will be working together on this new initiative. The new government initiative will focus on enforcement, collaboration and education to combat UPIL. To increase enforcement, DOJ will dedicate more resources to the investigation and prosecution of UPIL cases and increase their collaborative efforts by working with the FBI, ICE, USCIS and state and local agencies.
The system for reporting instances of UPIL has also been improved. The Federal Trade Commission has made it easier to report incidents of fraudulent immigration practice or immigration scams. Victims of immigration fraud can call the FTC hotline to report instances of UPIL. To file a complaint in English or Spanish visit the FTCs online complaint assistance (www.ftccomplaintassistant.gov) or call 1-877-FTC-HELP (382-4357). The FTC database, the consumer sentinel network, is shared with more than 2,000 law enforcements agencies and also with ICE, DOJ and USCIS. Prosecutors and investigators will use these complaints to investigate instances of UPIL.
To increase education regarding immigration law, USCIS has designed a new brochure, a poster, a public service announcements and a new web resource center. These efforts are aimed at providing better education to the immigrant community regarding the unauthorized practice of immigration law and where to go for legal advice. For more information about the USCIS education initiative program, visit www.uscis.gov/avoidscams.
Education about UPIL will also be improved by making the public more aware of the Executive Office of Immigration Review (EOIR) recognition and accreditation program. While non-lawyers are allowed to practice immigration law, they are only permitted to do so if recognized and accredited by EOIR. EOIR accreditation signifies that an organization and designated members are qualified and able to provide immigration advice and services. The government plans to increase the use of the accreditation program so that immigrants are able to more easily identify whether or not an organization is properly qualified to provide immigration services. For more information on the EOIRs recognition and accreditation program, please visit the DOJ website www.justice.gov/eoir/statspub/raroster.htm.
Mandatory E-Verify for Arizona Employers
On May 26, 2011, the U.S. Supreme Court upheld the Legal Arizona Workers Act of 2007 which requires all Arizona employers to use E-Verify and takes away the business licenses of companies that knowingly hire illegal immigrants. Chamber of Commerce v. Whiting (U.S. May 26, 2011). The majority opinion found the state law is not preempted by federal immigration law. This recent decision did not address Arizona’s SB 1070, the more high-profile Arizona immigration law which requires police to check the immigration status of individuals in certain circumstances.
Supporters of the Arizona bills plan to use this decision as a victory to call for even more employer sanctions laws in other states and at the federal level. Meanwhile opponents, including the American Immigration Lawyers Association, continue to call for immigration reform at the federal level.