E-Blasts

As we previously reported here and here, effective January 22, 2017, employers were required to begin using a revised Form I-9. Unfortunately, U.S. Citizenship and Immigration Services (“USCIS”) is reporting that the electronic Form I-9s downloaded between November 14th and November 17th had a glitch. On these forms, numbers entered in the Social Security Number field were inadvertently rearranged when employees completed and printed Section 1 using a computer. For example, the number 123-45-6789 entered in the Social Security Number field would appear as 123-34-6789 once the form was printed.

On Monday, Department of Homeland Security (“DHS”) Secretary John Kelly issued two memos regarding implementation of President Trump’s illegal immigration policies. The memos outline DHS’s priorities and plans for addressing illegal immigration.

Today, President Donald Trump signed two executive orders on immigration: the first directs federal agencies to begin construction of a wall along the Mexican border, and the second deals with measures regarding immigration enforcement. President Trump, who consistently stated Mexico will pay for the wall, now claims Mexico will reimburse the federal government for the wall’s construction without specifying how such reimbursements will occur. Under this order, the head of each executive department and agency has 30 days to identify and quantify all sources of direct AND indirect federal money sent to the Mexican government over the past five years, which includes money sent for development, humanitarian, and military aid. This provision hints at how the President intends for Mexico to “pay” for the wall.

The Federal Immigration Nationality Act and Form I-9 Requirements    

The Immigration Nationality Act (INA) makes it illegal for employers to knowingly hire persons who are not legally present in the United States. Employers who do so are subject to fines and possible imprisonment.     

In order to ensure that all employees are legally present in the United States, and thus eligible for employment, they are required to submit a Form I-9 to verify their identity and authorization for employment. When submitting such form, employees are required to provide either one document from List A (e.g., passport) or 2 documents: a List B verifying identity (e.g., driver’s license) and a List C verifying employment eligibility (e.g., social security card). If an employee is unable to provide both a List B and a List C document, he or she is not considered eligible to work in the United States.

California AB 60 Licenses    

On January 1, 2015, the California Department of Motor Vehicles began issuing a new type of driver’s license to applicants who cannot submit satisfactory proof of legal presence in the United States, but who otherwise meet all qualifications for the issuance of a driver’s license. Such a license, termed an “AB 60” driver’s license contains a mark stating “Not for Federal Identification.” This designation means that an AB 60 License is not compliant with the REAL ID Act in some way. However, the REAL ID Act states that this designation should not raise inferences or assumptions regarding an individual’s citizenship or immigration status, and further, State law precludes discrimination against a person holding an AB 60 License.

United States Guidance on AB 60 Licenses as Acceptable List B Documents    

On May 19, 2015, the United States Citizenship and Immigration Services (USCIS) recently issued guidance on the applicability of AB 60 Licenses for Form I-9 purposes. On June 4, 2015, various grower associations and legal representatives in the field, along with The Saqui Law Group, issued an Industry Announcement providing guidance to employers in handling AB 60 Licenses.

FOR IMMEDIATE RELEASE

Jams and juices will fill the shelves as fresh fruit and vegetables rot in the fields.

April 2, 2016 – A coalition of farmers led by California Farm Labor Contractor Fresh Harvest, Inc. is suing the U.S. Department of Labor and Department of Homeland Security in an attempt to get the agency to stop delaying the approval of agricultural worker visas and prevent the largest agricultural labor shortage in generations. The coalition seeks to force the government agency to comply with the mandatory timelines set forth in the H-2A visa program. If the government agency fails to act quickly to approve the farmer’s requests for skilled agricultural workers under the program, massive portions of the fresh fruit crop may rot on the vines, threatening an important part of the nation’s food supply.

Harvesting the fruit too late means most of the crop ends up as jams or juice which will mean much higher prices for consumers seeking fresh fruit. It also means huge losses for growers and farmworkers as overripe fruit fetches a much lower price on the market and much lower incentive payments for workers. Rotting fruit also does lasting damage to future yields as plants become more susceptible to disease, mold, and vermin which inhibit future production.

Industry Alert: AB 60 Update

U.S. Citizenship and Immigration Services on May 19 posted on its website guidance for employers of employees who present a driver’s license issued by a state to persons who cannot submit satisfactory proof of legal presence in the United States. In sum, the guidance states that such a license:


• Must be accepted in the Form I-9 employment eligibility verification process as a List B document establishing identity if it otherwise meets the requirements of a List B document (i.e., it contains a photo of or information identifying the individual presenting it) and the employer determines it reasonably appears to be genuine and to relate to that individual.


• Does not, in and of itself, support a conclusion that the employer had actual or constructive knowledge (i.e., knew or should have known) that the employee presenting it is not employment authorized (if that is in fact the case).

In addition, the guidance notes that:

Built For Employers