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IMMIGRATION LAW UPDATE
Arizona's
Immigration Law Will Go Into Effect July 29, 2010
Unless a
preliminary injunction is issued in one of the pending lawsuits
challenging S.B. 1070, the Arizona immigration law will go into
effect on July 29, 2010. Seven lawsuits challenging the law,
including a lawsuit filed by the US Department of Justice, are
currently pending. A hearing was held on July 23, 2010 before
U.S. District Judge Susan Bolton regarding implementation of the law,
however a ruling has not yet been issued. The law makes it a
state crime for foreign nationals to fail to carry immigration papers
that are required by federal law. Provisions of the law include
the following:
· For any "lawful stop,
detention or arrest" made by a law enforcement official who is
enforcing any other state or local law, and where there is
"reasonable suspicion" that the individual is not lawfully
present in the US, a reasonable attempt shall be made to determine
the immigration status of the person, unless the inquiry would hinder
an investigation. What would constitute "reasonable
suspicion" is not defined. Further, a law enforcement
officer may not consider race, color or national origin when
considering whether to inquire into immigration status, except to the
extent permitted by the US or Arizona Constitutions. We assume
at this time that persons will be detained until immigration status
can be confirmed.
· An
individual will be presumed to be lawfully present if the individual
provides to the law enforcement officer a valid Arizona driver's
license, a valid Arizona non-operating identification license, a
valid tribal enrollment card or other form of tribal identification,
or a form of identification from a government entity that requires
proof of legal presence in the US before the identification is issued.
A US citizen who does not have a driver's license from a state that
requires proof of legal presence in the US before issuance would be
at risk of being detained, unless they carried a US passport while in
Arizona.
· Persons
who transport, conceal or harbor an individual who is not lawfully
present in the US are guilty of a misdemeanor if the person
"knows or recklessly disregards" that the person does not
have lawful status in the US. It is a felony for a person to
transport, conceal or harbor 10 or more individuals who are not
lawfully present in the US. Penalties for violating this
provision include minimum fines in the amount of $1,000 for each
individual who was transported, concealed or harbored. In
addition, the vehicle used to transport the unauthorized alien must
be impounded. Therefore, employees who do not have work
authorization and are driving company cars could cause employers to
temporarily lose the vehicle.
· The
law provides for indemnity for law enforcement officers against
private lawsuits by aggrieved parties unless the officer is acting in
bad faith.
New H-1Bs
Still Available
On July 26, 2010, USCIS announced that
it received approximately 26,000 H-1B petitions toward the 65,000
available per fiscal year, under the general H-1B cap. In
addition, USCIS received 11,300 petitions toward the 20,000 available
per fiscal year under the US Master's Cap. USCIS continues to
accept petitions toward the general cap and the US Master's
cap. The H-1B is a frequently utilized temporary work visa for
professional positions. For more information on the H-1B visa, see the Clark Hill website.
Federal Agency Modifies all Federal Contracts to Include
E-Verify Requirement
The
General Services Administration (GSA) announced a mass modification
last week for all Federal Supply Service (FSS) contracts that will
force E-Verify to be incorporated along with other standard clauses
and contract exceptions. The regulation requiring that US
federal contractors and qualifying subcontractors use E-Verify was
made effective on September 8, 2009. Previously, the
requirement was being implemented in new and bi-laterally modified
contracts. The GSA is in the process of notifying all points of
contact for all existing federal contracts by e-mail of the contract
modifications. E-Verify is an electronic work authorization
verification system administered by the Department of Homeland
Security (DHS). For more on E-Verify visit the DHS website.
DHS finalizes I-9 Rule
On July 21, 2010, the Department of Homeland
Security (DHS) finalized a rule allowing employers to
electronically sign and store Form I-9 Employment Authorization
documents. Since 2006, interim rules permitted electronic
storage of employment verification forms, consistent with the electronic
storage rules for tax records. The final rule provides
additional flexibility for employers-including more options for data
compression, fewer storage requirements, and more options for storage
systems. For more information on I-9s, see the USCIS website.
US Immigration and Customs
Enforcement (ICE) Updates
Below
are summaries of recent efforts by the US Immigration and Customs
Enforcement (ICE) as they enforce laws related to employment of
persons not authorized to work in the US. While there were many
actions that took place recently, below are a few of the highlights.
Agriprocessors
Chief Executive Officer Sentenced to 27 Years on Fraud Charges
The
former vice president and chief executive officer of Agriprocessors
Inc., an Iowa-based kosher meatpacking plant, was sentenced June 22
to 27 years in prison for financial fraud. The charges stem
from an investigation conducted following a May 2008 raid on the
company's Postville, Iowa, meat processing plant, where federal
immigration authorities arrested nearly 400 suspected undocumented
alien workers.
ICE
Aggressively Pursues I-9 Fines
The Houston Chronicle reports
that Texas employers have been fined by ICE in excess of $600,000 for
I-9 violations since October 2009 for violations that included
failure to complete I-9s to knowingly hiring unauthorized workers.
Visa Priority Dates - August Visa Bulletin
The August Visa Bulletin has been posted.
Visas for employment based second and third preference cases are
available for some applicants, and there has been forward movement in
these categories. There continues to be forward movement for
most family based applicants. For a summary of priority dates,
retrogression, and how these dates impact US green card processing,
please visit the Clark Hill website.
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