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CIS Issues New Green Card (It's Green!) and Other News - May 12, 2010

Well, I'm not sure if it is environmentally friendly, but it will now be green in color. The card will be issued for new permanent residents and replacement cards starting yesterday (May 11), and is chock full of additional security features.

H-1B cap count

As of May 11, 18,000 "regular" and 7,600 "advanced degree" petitions have been filed against the numerical limits of 65,000 and 20,000 (respectively).  Remember that labor condition applications (LCAs) are taking at least a week, so don't wait to the last minute to let us know if you need an H-1B.

Will IA's "temporary" DL be OK for I-9?

If you understand the previous sentence, you are a human resources professional.

Iowa has changed its driver's license issuing procedures so that, like many states, upon application you will receive a 30-day "paper" license and within that time will receive the "plastic" license good for the period of time to which you are entitled by law.  An example of the new driver's licenses is attached.

We have confirmed with DOT that the "paper" license is a license, and will be valid for that purpose (at least they hope you will be able to board a plane outside of Iowa).  Since it has a photo, it will satisfy List B as an identity document on the I-9 form.  Although it will expire, typically we do not have to re-verify identity documents for I-9 purposes (thank goodness!).

So, as an employer trying to comply with the I-9 law, you can accept the temporary "paper" DL, so long as it appears to be genuine and relate to the person presenting it and is still valid at the time of the I-9 completion.  You will record the expiration date, but do not have to "tickle" that date (unless having a valid DL is a job requirement).

The harder question is what if you WANT to check for the "plastic" DL?  After all, the point of the new system is to catch terrorists, etc.  The information from the initial application is sent to a central location to be checked against all kinds of security databases.

Our employment lawyers tell us that so long as you implement this as a policy that applies to everyone or to a specific category that makes sense (and is not unlawfully discriminatory) that should be OK.

But really, when you think about it, if the person fails the security database check, we hope that someone with a badge is following up to remove that person to a more secure location.

If you have particular questions, we have employment lawyers here to help you.

Early Retiree Reinsurance Program:

HHS recently released interim final rules outlining the Early Retiree Reinsurance Program established by the health care reform legislation adopted in March.  This is important for any employer that provides health benefits to early retirees (retirees between the age of 55 and 64).  The new rules require plan sponsors to apply for and be approved for the Program prior to submitting any claims for reimbursement from the federal government.  Plan sponsors of plans covering early retirees may begin applying June 1, 2010, regardless of whether they currently have a claim that would be eligible for reinsurance.  Given the limited availability of funds, HHS may stop accepting applications at any time.  Therefore, it is important that interested plan sponsors apply early.  Contact Susan Freed (, or any of our health lawyers, for details.

For small tax-exempt entities:

Until recently, tax-exempt organizations that had annual gross receipts of $25,000 or less had no Annual Information Return (Form 990 series - an exempt's equivalent of an annual tax return) filing obligation.  Under the Pension Protection Act, however, even these smaller exempt organizations now must file an electronic "e-postcard" return with the IRS, or risk having their exempt status automatically revoked by statute.  Failure to file an e-postcard for 3 consecutive years will result in this automatic termination.   The e-postcard filing is very simple, and is done over the Internet.  For calendar year organizations whose 3rd skipped filing year ended December 31, 2009, their exempt status will be revoked May 15th.  Exempts that operate on a fiscal-year basis will have a later deadline depending on their required filing date, which is generally the 15th day of the fifth month after their fiscal year ends.  Contact Bill Boatwright (, one of our tax lawyers, for details.

And finally, the Arizona law  - legal analysis

I am not a Constitutional lawyer (although we have them in our firm), but I thought you might appreciate hearing the Constitutional argument against the Arizona "papers please" law from Crystal Williams, the Executive Director of the American Immigration Lawyers Association (only read this if you want to know what lawyers talk about among themselves):

One of the problems with debates on serious issues being played out in the media is that all sides, by necessity, make their arguments with shorthand and sound bites. The same is true, in spades, of the public discussion on Arizonas SB1070 immigration law.

Much of the debate centers around the laws requirement that law enforcement personnel demand immigration documents when they have reasonable suspicion that someone they have stopped might be undocumented. Proponents of the law often give the example of an Arizona driver who has been stopped for speeding and is unable to produce a valid driver's license as an example of reasonable suspicion.

While that example makes for a nice sound bite, the reality is a little more complicated. If Arizona had meant to limit the circumstances to that, they readily could have written a law that said that if a person required to produce an Arizona driver's license cannot do so, check for his proof of legal status. That would have been ethnically neutral, and would have avoided getting into the vague territory of "reasonable suspicion." But they didn't do that. Instead, they went much further.

The Arizona law requires law enforcement officers (including non-police civil servants enforcing municipal civil codes) to demand documents where "reasonable suspicion" exists that a person might be undocumented. Thus, if a county official goes to a home to cite the resident for the grass being too tall, or having too many people living in the house, or having a car on blocks in the yard, this obligation kicks in. Since there is no reason in these kinds of instances to look at a drivers license, what would create "reasonable suspicion" in this form of stop?

The legal definition of "reasonable suspicion" arises from a 1968 Supreme Court case called Terry v. Ohio. The court there said that, under the Fourth Amendment prohibition against unreasonable searches and seizures, an officer may "stop and frisk" a person if the officer observes "articulable facts" that make it "reasonable to assume" that the person is violating the law. Well, here, the "frisk" would be the demand for the documents. But what articulable facts could arise that would make it reasonable to assume that someone is in violation of immigration laws? THAT is the sticking point. In the vast majority of circumstances covered by this law, the ONLY articulable facts would be ethnically based-color of skin, accent, language. And THAT then triggers an issue under the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which states "no state shall . deny to any person within its jurisdiction the equal protection of the laws".

Modern law interpreting the Equal Protection Clause derives from the famous school desegregation case, Brown v. Board of Education. That case, and those that have followed it, have established that this Clause operates as a general restraint on the government's power to discriminate against people based on their membership in certain classes, including those based on race and ethnicity. Because in the vast majority of the circumstances in which the Arizona law requires officers and officials to demand documents, the only possible articulable fact that would lead to the demand is ethnically based, the law conflicts with the Fourteenth Amendment.

It also is just plain against American values to engage in this kind of ethnic profiling.

There are those who argue that police develop "instincts" and "can identify patterns" that lead them to a reasonable suspicion based on their experience. Even assuming that that is true, and is not in fact based on subliminal prejudices, it would not be true here. The enforcement of this law is being assigned to state and local police and to civil servants, rather than to immigration officers. None of them have the experience to know what those patterns would be. Again, that leaves them with only ethnicity to serve as a guide. And, since the majority of ethnic minorities, including Latinos, in Arizona are in fact U.S. citizens or legal residents, ethnicity would not be a reliable basis even if such profiling were not morally repugnant.

(From AILA InfoNet Doc. No. 10051130 (posted May. 11, 2010)

No doubt this is headed for the courts.