September 2009

On September 28, 2009, DHS again extended the deadline for states to request an exemption from compliance with the REAL ID regulations, this time from October 11, 2009 to December 1, 2009.  The REAL ID Act of 2005 prohibits Federal agencies from accepting a driver’s license or personal identification card for any official purpose unless the license or card has been issued by a State meeting the requirements of the Act.  In 2008, all States requested an extension of the original May 11, 2008 compliance date, and are now required to comply by January 1, 2010 unless an additional extension is requested by the new deadline.  REAL ID requires the use of digital photographs, signatures and machine readable features such as a bar code on all licenses and cards.  States must also access Federal databases to check identity and legal status prior to issuing a license or card, and electronically share personal information with all other States.

Many States have indicated that they will be unable to comply with REAL ID, claiming, among other things, that the requirements are largely ineffective and too costly to implement without any federal funding.  DHS Secretary Janet Napolitano, who had been critical of the REAL ID as Governor of Arizona, has been supportive of recent legislation that would repeal those provisions of REAL ID which are most objectionable to States, and provide some federal funding for implementation of the essential security upgrades that would still be required.

US Immigration and Customs Enforcement (ICE) fined a Missouri poultry plant $450,000 for I-9 violations following a worksite enforcement investigation.  ICE arrested more than 130 employees who were not authorized to work in the United States.  As part of the settlement, the company agreed to train its human resource personnel on how to avoid hiring undocumented workers, and to establish a compliance program to ensure that its hiring and employment practices are consistent with US law.  In addition to the I-9 paperwork violations and violations for knowingly employing undocumented workers, two of the company’s employees were convicted of harboring undocumented workers and inducing illegal aliens to remain in the United States.

With increased worksite investigations, employers should periodically conduct internal I-9 audits, and review its compliance procedures with appropriate personnel to minimize any type of fines that could be assessed in the event of a government investigation.

On September 10, 2009, the U.S. Department of State released the October 2009 Visa Bulletin.  As anticipated, the news is not good.  Waiting lists for Indian and Chinese nationals whose U.S. employers have sponsored them for positions that require advanced degrees are backed up to early 2005.  For positions that require at least a bachelor’s degree, wait lists stand at early 2002 for all nationalities except Indians (mid-2001).  Family-based categories are also painfully oversubscribed.  Depending on their nationalities, spouses and children of U.S. permanent residents must wait 4 to 6 years, and unmarried adult children of U.S. citizens must wait 6 to 16 years. 

Under the Consolidated Natural Resources Act of 2008, U.S. immigration law will extend to the Commonwealth of the Northern Mariana Islands (CNMI), a chain of 14 Pacific islands located near Guam, beginning on November 28, 2009.  Inspection and admission of travelers to the CNMI will change, and authorized stays under the Visa Waiver Program in Guam and CNMI will increase from 15 to 45 days.  The Department of Homeland Security announcement may be read here.

On September 1, 2009, four business associations filed in federal court for an emergency injunction to delay the implementation of the new E-Verify requirement for certain federal contractors, which will become effective on September 8, 2009, under the Federal Acquisition Regulation (FAR).  The pleading and brief may be read here.  Check back for updates.

UPDATE:  The U.S. District Court for the Southern District of Maryland denied the injunction filed by the business coalition led by the U.S. Chamber of Commerce; however, an appeal will be filed with the Court of Appeals for the 4th Circuit.  Until a decision is reached, the E-Verify rule for Federal contractors is in effect.