California Immigration Lawyer Blog

I recently received an inquiry at my San Francisco immigration law office from an "employer" who recently discovered that a person whom he had hired as an independent contractor was in the United States illegally. The employer had not originally known that the "employee" was illegal because independent contractors are exempt from the requirements of the Immigration Reform and Control Act (*IRCA*) that require an employer to verify that an an employee is authorized to work in the United States. The "employer" wanted to explore the options of legalizing the contractor. While thinking about the options, I became interested in how the law defines an independent contractor.

According to 8 Code of Federal Regulations Section 274a.1(j) an independent contractor is an individual or entity who carries on an independent business, contracts to do a piece of work according to their own means and methods, and are subject to control only as to results.

The decision of whether or not someone is an independent contractor is determined on a case-by-case basis. Factors to be considered include whether the individual or entity:

• supplies the tools or materials;
• makes services available to the general public;
• works for a number of clients at the same time;
• has an opportunity for profit or loss as a result of labor or services provided;
• invests in the facilities for work;
• directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done.

I began to wonder if people used independent contractors to get around the IRCA requirements. Apparently Congress thought about that as there is a regulation which states that an "employer" may not avoid the requirements of IRCA by hiring an independent contractor if a person or entity knowingly uses a contract or subcontract to obtain labor or services of an unauthorized alien. 8 C.F.R. §274a.5.

Continue reading "There will always be illegal workers in the U.S." »

Posted by Geri Kahn | Permalink | Email This Post

Posted In: E-verify , Employment verification

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A few days ago I saw a client from the San Francisco Bay area who had different spellings of his name on his government issued documents: one version on the green card, one on the California Driver's License and finally another on the Social Security card. In the past, the different versions of spelling did not matter so much. A person could usually explain the difference to an employer if there was a question when completing the I-9 form. Unfortunately a discrepancy between what USCIS shows and what Social Security shows may now mean that he may not get hired because if an employer uses e-verify, the system could not verify that he is the same person authorized to work in the United States.

E-verify is an internet based system operated by the Department of Homeland Security in cooperation with the Social Security Administration that permits participating employers to electronically verify the employment eligibility of their newly hired employees. (For more about e-verify, see my previous post, "To e-verify or not to e-verify, that is the question.") One of the criticisms with e-verify is that there are mistakes such as this when a person has legal status but the data used is inconsistent.

The best way to resolve the problem is to make sure that both agencies have the correct spelling of your name. Not only is it necessary to get around the problems with e-verify but later in life, you may wish to receive Social Security and you will want to make sure that you have been credited with all of your earnings.

If the problem is with USCIS and you have a green card, you can file a Form I-90 to correct the spelling of your name and obtain a new green card. If the error is the fault of USCIS, the application is free. You must send the application in with proof of the correct spelling of your name.

If you are applying for citizenship and your name has a minor spelling or translation error, you may be able to convince the officer that you do not need to make a name change, but rather the mistake is simply due to a mistake in translation. You should bring a document with you that shows the correct spelling on it to show the officer. You will then obtain a certificate of naturalization with the correct spelling of your name and your name will be correct in USCIS records.

If you wish to change your name and then change your immigration documents, you will need to obtain a court order of your name change. Once you have the court order, you may submit it with either your Form I-90 (to obtain a new green card) or with your application for citizenship so that your new name will be placed on the naturalization certificate.

Continue reading "How to inform Social Security and Immigration if my name is misspelled or it changes " »

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Department of Homeland Security , E-verify , Procedures , Social Security , USCIS

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I previously wrote a post on the e-verify program and the mandatory rule for employers hiring federal contractors to use this program beginning on January 15, 2009.

Fortunately, the deadline for mandatory verification has been extended until February 20, 2009. The reason for the extension is because the U.S. Chamber of Commerce and four other associations have sued the government and litigation is pending. The name of the lawsuit is Chamber of Commerce of the United States of America, et al. v. Chertoff, et al (You will need an account on PACER, the federal court filing electronic system to view the whole case.) The lawsuit requests that the rule be declared invalid and that the court permanently enjoin it from going into effect on the grounds that neither the President nor the Department of Homeland Security ("DHS") had the authority to mandate the use of e-verify for federal contractors. The litigation also challenges e-verify on the grounds that it is an unfair burden to employers and that the database used by DHS is inaccurate.

USCIS has published a notice on their website announcing the delayed implementation. They also have published a good set of frequently asked questions about e-verify.

Posted by Geri Kahn | Permalink | Email This Post

Posted In: Department of Homeland Security , E-verify , Immigration Law

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At our recent conference of Immigration lawyers in San Francisco last weekend, we heard several presentations about e-verify. I came away from the conference thinking that whether or not to register for e-verify is a Shakespearean quandary.

E-verify is an internet based system operated by the Department of Homeland Security in cooperation with the Social Security Administration that permits participating employers to electronically verify the employment eligibility of their newly hired employees. Once an employer registers with a program, the user completes a tutorial and then may begin using the system. The Department of Homeland Security claims that more than 69,000 employers use e-verify and that over 4 million employment eligibility queries have been run in fiscal year 2008.

It is currently a voluntary program; however, beginning on January 15, 2009, all federal contractors and subcontractors are required to use it. Thus for some employers, participation in the program will be obligatory.

Immigration Customs and Enforcement ("ICE") wants non-governmental employers to use e-verify so they have established a program called IMAGE designed to help employers institute what ICE calls "best practices" into the hiring process. By registering for this program, employers agree to:

• submit to an I-9 audit by ICE;


• verify the Social Security numbers of their employees using another database called Social Security Number Verification Service (SSNVS);


• use e-verify for all new hiring;


• establish an internal training program covering such topics as I-9, fraudulent identity documents, and e-verify procedures;


• have only trained employees completing the I-9 and performing the e-verify query and establish a secondary review process;


• conduct a semiannual I-9 audit by neutral party and establish a self-reporting procedure to inform ICE of violations or deficiencies;


• establish a protocol for responding to no-match letters from the Social Security Administration.

In exchange for an employer's participation in the program, ICE will consider an employer's participation in IMAGE as a mitigating factor should any civil penalties be levied against an employer who has hired persons unauthorized to work.

Continue reading "To e-verify or not to e-verify, that is the question" »

Posted by Geri Kahn | Permalink | Email This Post

Posted In: E-verify

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