Lawsuit Seeks Ruling On Whether Obama is a "Natural Born" U.S. Citizen

Using natural origin or even citizenship as criteria for employment is obviously illegal for private sector employees.  Ironically, however, such discrimination is required for the most important job in the land. 

Article II, Section I of the Constitution provides that "No Person except a natural born citizen of the United States . . . shall be eligible to the Office of President."  This provision has barred figures from Alexander Hamilton to Arnold Schwarzenegger from presidential consideration.

Former American Independent Party presidential candidate, Alan Keyes, apparently thinks that the "natural born citizen" clause may bar Barack Obama as well.  According to the Complaint filed in U.S. District Court in Santa Ana yesterday as Alan Keyes v.  Barack H. Obama, et al., Keyes alleges that Obama has failed to sufficiently document that he is a "natural born" citizen.    

The Complaint alleges that public record documents raise significant "doubt" that Obama meets the Constiutional requirement as he was supposedly born in Kenya and was later granted Indonesian citizenship as a child in that country.  The lawsuit therefore seeks disclosure of Obama's original birth certificate or other verifying documents.  In the alternative, Keyes alleges that:

In the absence of such proof, the electoral college having elected Defendant Obama to President elect, the President elect, must be detrmined to have failed to qualify a valid President, whereby the Vice President becomes the Acting President under U.S. Constitution Amendment 20.

In short, the lawsuit is asking Mr. Obama to provide his original birth certificate, or else step aside for President Biden. 

This type of Constitutional lawsuit is usually squelched on grounds of standing, mootness, or justiciability.  But even if one looks on the suit as a mere political stunt, it nevertheless focuses attention on the "natural born citizen" clause and whether this requirement that has outlived its purpose. 


Online Resources Help with Work Visa Information

We frequently field questions from clients about work permits for their foreign national employees.  It is a complicated area.  Many employers may have a passing familiarity with the standard "green card" Visa, the H1-B Visa program  for highly skilled workers, or the L-1 Visa for employees who are on transfer from one of the employers foreign offices.  But they may be surprised to learn that there are nearly 60 different types of non-resident visas available.  For example, I recently learned that there is a special TN1 Visa for Canadians which was created as part of the NAFTA treaty.  For more information on all of these programs (as well as permits from foreign governments for Americans working abroad), I highly commend the site, which contains a wealth of useful information as well as links to attorneys specializing in this area.

President Bush Signs Executive Order Requiring Federal Contractors to Use E-Verify System to Confirm Work Eligibility and Immigration Status

President Bush has signed an executive order requiring all federal contractors to use the federal E-Verify system to confirm that new hires are eligible to work in the United States.   E-Verify is a Web-based database that will report the status of an employee based on his or her SSN. For more information about using E-Verify  visit the U.S. Citizenship and Immigration Services' website.  The move is part of the administration’s effort to enforce federal immigration laws in the wake of Congress’s failure to move forward on comprehensive immigration reform legislation. 

Critics of the system claim that it is rife with errors, is misused by employers, and will lead to discrimination against legal workers who are perceived as potential “illegal aliens” (or “undocumented immigrants” if you prefer). As reported in the LA Times today, the administration is claiming that the E-Verify system has been much improved from earlier pilot programs and is now 99.5% accurate.

While the executive order has no legal effect on non-government contractors, mainly are already voluntarily using the system. The existence of the executive order does tend to bolster the argument that using the system is proper and should constitute a safe harbor against any potential fines for “knowingly” employing an illegal alien/undocumented immigrant.

Reminder - Employers Must Use New I-9 Form Starting December 26, 2007

All U.S. employers must use the new Form I-9 beginning next week on December 26, 2007.  Failure to transition to the new form could result in penalties.  The new I-9 can be downloaded from the US Citizenship and Immigration Services' website here

All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. The list of acceptable documents has been amended in the 2007 version of the Form I-9 and can be found on page 4 of the forms.

The U.S. Citizenship and Immigration Services notes on its website the following changes to the Form I-9:
Five documents have been removed from List A of the List of Acceptable Documents:
  • Certificate of U.S. Citizenship (Form N-560 or N-561)
  • Certificate of Naturalization (Form N-550 or N-570)
  • Alien Registration Receipt Card (I-151)
  • Unexpired Reentry Permit (Form I-327)
  • Unexpired Refugee Travel Document (Form I-571)
One document was added to List A of the List of Acceptable Documents:
  • Unexpired Employment Authorization Document (I-766)
All Employment Authorization Documents with photographs have been consolidated as one item on List A:
  • I-688, I-688A, I-688B, I-766
Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.

Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.

ICE Offers FAQ's About Newly Implemented Immigration Regulations

With the implementation of the new immigration regulations, the US Immigrations and and Customs Enforcement (ICE) has added new information to its website explaining what employers need to do to comply.  The US Immigrations and and Customs Enforcement's website can be found here.

The website also allows readers to login in order to receive email updates if the frequently asked questions changes.  The login page can be found here.  I recommend that every employer take the time to review the FAQ's to understand the changes ICE is implementing.  For example, ICE posted the following FAQ:

What should an employer do when it receives a Social Security Administration (SSA) No-Match letter?

The employer should take reasonable steps to resolve the No-Match, and apply these steps uniformly to all employees listed in the SSA letter. It is possible that a No-Match was the result of a clerical error on the part of the employee, the employer, or the government. DHS/ICE considers the following to be reasonable steps if the employer:
1) Promptly (no later than 30 days) checks its records to ensure that the mismatch was not the result of an error on the part of the employer,

2) If this does not resolve the problem, asks the employee to confirm the accuracy of the employer's records,

3) If necessary, the employer should ask the employee to resolve the issue with SSA. The employer should inform in order to give the employee as much time as possible to resolve the matter and inform the employee that the employee has 90 days from the date the employer received the No-Match letter to resolve the matter with SSA (explaining that resolution of the mismatch could take time).

4) If the employer was able to successfully resolve the mismatch, the employer should ensure that of the instructions in the SSA letter have been followed. The employer should also verify that the error has been corrected by using the Social Security Number Verification Service (SSNVS) administered by SSA, and retain a record of the date and time of verification. SSNVS can be accessed through or by telephone at 1-800-772-6270; and

5) If none of the foregoing measures resolves the matter within 90 days of receipt of the No-Match letter, the employer should complete, within three days, a new I-9 Form as if the employee in question were newly hired, except that no document may be used to verify the employee's authorization for work that uses the questionable Social Security number. Additionally, the employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization.
If the employer cannot confirm that the employee is authorized to work (by following the above procedures), the employer risks liability for violating the law by knowingly continuing to hire unauthorized workers.

Proposed Immigration Rules Likely To Be Implemented

Over the weekend the Los Angeles Times had another article about what it says are going to be the new immigration regulations put in place within the next few days.  Here is an excerpt of the article:
"If things don't get worked out in a couple months, we're just supposed to fire someone?" Hauge asked. "What happens if the data is wrong and you fire them? Does that open you up to a wrongful-termination suit?"

Knocke, the Homeland Security spokesman, disagreed. "If employers act in good faith and make an effort to comply with the law, there will be a safe harbor provision for them," he said.

Businesses should not be surprised by the new enforcement initiative, Bush administration officials said. The government has been sending out the "no-match" letters to employers since 1979.

"There's nothing different with the letter," said Mark Hinkle of the Social Security Administration. "What is different is an upcoming Homeland Security regulation that will be clarifying what businesses need to do if they receive a no-match letter."

No-match letters may be sent when there are inconsistencies between a worker's tax forms and records -- such as an individual's birth date or name spelling -- that the Social Security Administration has on file.

In 2005, the administration sent 8.1 million letters to workers at their home addresses, asking them to resolve differences. About 1.5 million letters were mailed to the workers' place of employment when no home address was available.

For businesses that had more than 10 employees with discrepancies in their record, a third type of letter is mailed. Last year, the administration mailed 138,000 of those letters to employers, Hinkle said. This year, they anticipate a slight uptick to 140,000.

With the Homeland Security crackdown, Hinkle said the agency was expecting "some increase" in phone calls and foot traffic at its 1,300 offices across the country. "We really don't have a projection," Hinkle said. "We handle millions of phone calls and millions of visitors and millions of claims a year. So we'll deal with it as it occurs."

Although many employers have still to learn the details of the regulations, the major trade groups protesting the action expect Homeland Security to act soon despite industry objections. (emphasis added) 

The entire article can be read here

Department of Homeland Security May Enact Proposed Rules Within the Next Few Days That Would Change Employers' Obligations When In Receipt of "No-Match" Letters

The Los Angeles Times reports today that the Department of Homeland Security may implement its proposed rules clarifying employers’ obligations when in receipt of a “no-match letter” within the next few days.

The proposed rules, if actually enacted, clarify what steps employers need to take when in receipt of a no-match letter in order to avoid being deemed to have constructive knowledge of an employee’s unauthorized work status. The Department of Homeland Security proposed rules can be read here.

Employers annually send the Social Security Administration (SSA) millions of earnings reports (W-2 Forms) in which the combination of employee name and social security number (SSN) does not match SSA records. In some of these cases, SSA sends a letter that informs the employer of this fact. The letter is commonly referred to as a ``no-match letter.'' There are many causes for such a no-match, including clerical error and name changes. But one of the causes is the submission of information for an alien who is not authorized to work in the United States and is using a false SSN or a SSN assigned to someone else. Such a letter may be one of the only indicators to an employer that one of its employees may be an unauthorized alien.

Specifically, the proposed rule would add two additional examples of when an employer will be found to have constructive knowledge of an employee’s unauthorized work status. Those two examples are: (1) failure to take reasonable steps after receiving a no-match letter from DHS; and (2) failure to take reasonable steps after receiving a no-match letter from SSA.

If the rules are enacted, employers are urged to read the regulations in order to learn of their new obligations.

Take Time This Summer to Review Your Immigration Law Compliance and Form I-9s

With ICE conducting more and more raids throughout the country, employers should take some time this summer to review their documentation regarding their employees’ eligibility to work to ensure compliance with the current law.

Every U.S. employer must have a Form I-9 in its files for each new employee, unless:
  • the employee was hired before November 7, 1986, and has been continuously employed by the same employer.
  • Form I-9 need not be completed for those individuals:
  • providing domestic services in a private household that are sporadic, irregular, or intermittent;
  • providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
  • providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)
Therefore, almost every employee hired (unless specified in one of the very narrow exceptions above) should complete an I-9 Form.

When do employees have to complete the I-9 Form?
A new employee must complete Section 1 of the Form I-9 no later than close of business on his/her first day of work. The employee’s signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full.

The employer is responsible ensuring completion of the entire form. Once the employee completes Section 1, the employer must complete Section 2 no later than close of business on the employee’s third day of employment. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The Employer msut carefully follow the instructions found on the Form I-9 regarding which documents are acceptable. Failure to closely follow the instructions could expose the employer to discrimination claims. The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them.

If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.

What if during the review and employer discovers that I-9s are missing?
The U.S. Citizenship and Immigration Services website provides:
An employer who discovers that the Form I-9 is not on file for a given employee should request that the employee complete section 1 of the Form I-9 immediately and submit documentation as required in Section 2. The new form should be dated when completed--never post-dated. When an employee does not provide acceptable documentation, the employer must terminate employment or risk being subject to penalties for “knowingly” continuing to employ an unauthorized worker if the individual is not in fact authorized to work.

How long do employers need to retain the I-9 Forms?
Employers must maintain I-9 records in its own files for 3 years after the date of hire or 1 year after the date the employee's employment is terminated, whichever is longer. This means that Form I-9 need to be retained for all current employees, as well as terminated employees whose records remain within the retention period. Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection. It is highly recommended that the I-9 Forms and related documents be maintained in separate files so that the documents can be easily produced to the government within the three-day notice period.