Legal Updates

Winter 2007

Recent Developments in Immigration Law: Part 2 (cont...)

New I-9 and Employer Handbook Released
The year 2007 brought the much anticipated new Form I-9, Employment Eligibility Form, and the Employer Handbook. The revised Form I-9 (which has a revision date of June 5, 2007) is intended to achieve full compliance with the document reduction requirements of IIRIRA, which reduced the number of documents employers may accept from newly hired employees to satisfy the employment eligibility process.

The new Form I-9 removed five documents from the List A column (proof of both identity and employment eligibility). They include: Certificate of U.S. Citizenship (Form N-560 or No-570); Alien Registration Receipt Card (Form I-151); the unexpired Reentry Permit (Form I-327); Certificate of Naturalization (Form N-550 or N-570); and the unexpired Refugee Travel Document (Form I-571). As well, the most recent version of the Employment Authorization Document (Form I-766) was added to List A.

As of November 7, 2007, the new Form I-9 is the only version of the form that is valid for use. DHS will begin penalizing employers for using a previous version of the Form I-9 after December 26, 2007.

DHS Initiatives to Improve Border Security Announced
In August 2007, following the defeat of Comprehensive Immigration Reform in the U.S. Senate, DHS announced a series of reforms that the administration will pursue in order to address border security issues. The Administration stated that it is committed to implementing the following border security measures by December 31, 2008: 18,300 border patrol agents, 370 miles of fencing, 300 miles of vehicle barriers, 105 cameras and radar towers, and three additional unmanned aerial vehicles.

The policy of "catch and return," which ensures that all removable aliens caught trying to cross the border illegally are held until they can be removed, will be maintained. Other initiatives announced include reducing the number of documents that employers must accept to confirm the identity and work eligibility of their employees, raising the civil fines imposed on employers who knowingly hire illegal immigrants by approximately 25%, and expanding criminal investigations against employers who knowingly hire large numbers of illegal aliens.

Entry Requirements and U.S. Passport Application Issues:
Requirements for Crossing the United States Border
The federal government is in the process of implementing rules requiring that American citizens returning from destinations in the Western Hemisphere (including Canada and Mexico) will need to have valid passports in order to reenter the United States. Although these requirements have not yet been fully implemented, it is clear that a large number of U.S. citizens will need to now obtain passports, many for the first time.

2007 was an active year in terms of governmental announcements regarding the implementation of citizenship identification records. The federal government has announced that, by 2008, the Intelligence Reform and Terrorism Prevention Act of 2004 will mandate that any traveler to or from the Caribbean, Bermuda, Panama, Mexico, and Canada must have a passport or other secure, government-accepted document to either enter or re-enter the United States. At the end of 2006, the requirement was applied to all sea travel to or from Canada, Mexico, Central and South America, the Caribbean, and Bermuda. Then, at the end of 2007, the same rule was supposed to apply to all land border crossings to and from these countries.

The only planned exception to the passport rule is for specific travel documents, typically made available to those who cross the border on a regular basis. In the case of the Canadian border, there is a program called NEXUS for individuals, and FAST for commercial trucking, with current enrollments of 45,000 and 76,000, respectively. Federal officials have said that people in both programs would automatically be allowed to pass through. In the case of Mexico, border crossing cards ("BBCCs" or "laser visas") may possibly be an acceptable substitute for Mexican citizens, as well as the current Secure Electronic Network for Traveler’s Rapid Inspection ("SENTRI") system for pre-approved, low risk travelers. Travel between the United States and its overseas territories, such as Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marinara Islands, and American Samoa will not be affected.

The new passport travel requirements resulted in a dramatic increase in applications for passports, as many people who previously did not require a passport now find themselves needing one for the first time. The DOS estimated that it would need to process more than 17 million passports in 2007; a 40% increase from 2006.

In mid-2007, the DHS and Department of State ("DOS") published a joint notice of proposed rulemaking to implement the final phase of the Western Hemisphere Travel Initiative ("WHTI") and require persons entering the United States from Western Hemisphere countries to present a passport or other travel document as determined by the Secretary of Homeland Security.³ In the Notice of Proposed Rulemaking ("NPRM"), DHS also explained that, separate from WHTI, beginning January 31, 2008, U.S. Customs and Border Protection ("CBP") would no longer accept oral declarations alone as proof of citizenship or identity at land and sea border ports-of-entry.

DHS and DOS attempted to minimize the impact on cross-border trade and travel. Consequently, on December 3, 2007, they issued a press release implementing the following rule regarding land-border admissions to the United States. As of January 31, 2008, oral declarations of citizenship alone will no longer be accepted. As well, U.S. and Canadian citizens ages 19 and older will need to present government-issued photo identification, such as a driver’s license, along with proof of citizenship, such as a birth certificate or naturalization certificate. Children ages 18 and under will only be required to present proof of citizenship, such as a birth certificate. Passports and trusted traveler program cards, such as NEXUS, SENTRI, and FAST, will continue to be accepted for cross-border travel.

On December 14, 2007, CBP also followed up with an announcement that effective January 31, 2008, U.S., Canadian and Bermudian citizens entering the United States at land or sea ports-of-entry must establish their identity and citizenship to the satisfaction of a CBP Officer. Under current CBP procedures, such individuals may provide any proof of identity and citizenship. While most individuals provide documentary evidence of citizenship, such as a passport or birth certificate, individuals may, depending on the circumstances, be admitted on an oral declaration. Accordingly, CBP is amending its field guidance procedures to instruct CBP officers that citizenship ordinarily may not be established using only an oral declaration. This change in procedure is intended to reduce the potential vulnerability posed by those who might falsely purport to be U.S., Canadian or Bermudian citizens trying to enter the United States by land or sea in reliance upon a mere oral declaration.

Miscellaneous Topics of Interest in 2007

"Comprehensive Immigration Reform" Defeated
The failure of so-called "Comprehensive Immigration Reform" in the U.S. Senate was clearly the immigration-related topic which garnered the most media attention during the past year. The centerpiece of the proposal was a plan to offer an eventual path to citizenship to the majority of people currently in the country illegally, contingent upon the securing of the U.S.-Mexico border. Although this was not of central importance to employers who legally hire highly-skilled foreign workers, the proposal would have drastically altered the landscape of immigration employment law. Most importantly, the entire employment-based permanent residence system (including the labor certifi cation process) would have been eliminated, in favor of a point-based merit system somewhat analogous to that currently used by countries such as Canada and New Zealand. Significant changes, mostly negative, were also in store for the H-1B and L-1 classifications. Although the proposed legislation was not adopted, it is probable that these issues will re-surface at some point after the 2008 presidential elections.

Proposed Changes to U.S. Citizenship Test
An applicant for U.S. citizenship through naturalization must generally pass a government civics test (unless the test requirement is waived). The citizenship test, which has been used for the last several years, is composed of a series of questions concerning basic facts about the federal government. The questions include: "Who wrote the ‘Star Spangled Banner?"; "What are the 13 original colonies?"; "What is the Emancipation Proclamation?"; and "How many Justices sit on the Supreme Court and who is the Chief Justice of the Supreme Court?"

In response to criticism that the test is overly concerned with facts that are not necessarily relevant to becoming a good citizen, the USCIS will begin a pilot test program this winter. The number of questions will be reduced to ten, with six correct answers required to pass. In addition, the new questions are expected to de-emphasize historical facts in favor of responses that must elicit some explanation of guiding principles of American democracy and values.

Some critics have commented that the proposed test could raise the bar too high for immigrants, requiring them to show not only that they are willing to study for a test, but also that they understand and share American values. Other observers have speculated that the new test is motivated by concern over contemporary European immigration issues, stemming from the presence of large, unassimilated immigrant communities which seem reluctant to adopt the guiding principles of the host nation.

1 | 2 | 3