Important Department of Labor Email Addresses
For when you're gnashing your teeth or spinning your wheels, a little employment-based immigration practice aide with a list of important DOL email addresses.
Will Obama's Regulatory Review Affect the New H-2A Regulation?
Since posting my summary of the new H-2A regulation below, I’ve received a number of calls and notes from folks asking me whether the new H-2A regulation will—for lack of a better phrase—remain in effect. As many of you are aware, on January 26, 2009, President Obama issued a memorandum to the heads of executive departments and agencies entitled “White House Memo Calling for Halt to Midnight Regulations Published in Federal Register”. As the memo’s title implies, the new administration plans to review and possibly amend or quash regulations issued in the final hours of the Bush administration. At first blush the new H-2A regulation would certainly seem to fall within the somewhat loosely defined category of a “midnight regulation” and would therefore be subject to review. However, after analyzing the memo, I don’t think the H-2A reg actually is subject to any further administrative review.
The directive’s first prong stipulates “…no proposed or final regulation should be sent to the Office of the Federal Register for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009…[.]” (my emphasis). On this count, the new H-2A regulation was already published on December 18, 2008, so the directive's first prong wouldn’t apply.
The directive’s second prong requires that the agencies or departments “[w]ithdraw from the OFR all proposed or final regulations that have not been published in the Federal Register so that they can be reviewed and approved by a department or agency head…[.]”(again, my italics). Since, as I stated above, the new H-2A regulation was already published in the Federal Register on December 18, 2008, the directive’s second prong also would not apply to the new H-2A regulation.
Finally, the directive’s third prong requires agencies and departments to “[c]onsider extending for 60 days the effective date of regulations that have been published in the Federal Register but not yet taken effect, subject to the exceptions described in paragraph 1…[.]” (my italics and bolding added). The new H-2A regulation, in fact, took effect on January 17, 2009. The Obama administration’s regulatory review memo wasn’t published until January 26, 2009. As a result, the new H-2A regulation also falls outside the directive’s third prong and, therefore, should not be subject to further administrative review.
In short, based on what I’m hearing, I sadly yet fully expect the DOL and USCIS to be in a state of unbridled confusion over the issue of whether the new H-2A regulation is truly in effect. But, according to my analysis, the new regulation is definitely the law of the land. It’s clear that practitioners, employers and governmental agencies must forge ahead under the new regulation’s requirements.
Rubashkin Granted Bail
In what I think is a somewhat surprising decision, Judge Linda Reade today agreed to release Sholom Rubashkin on a $500,000.00 bail pending his trial in September 2009. Reade granted the bail despite the prosecution's evidence that Rubashkin is alleged to have previously committed federal bank fraud while on release from arrest on prior immigration charges. The prosecution also argued against the granting of bail by pointing out that Rubashkin had made a trip to Canada almost immediately before the government brought the current charges against him. Finally, Reade granted Rubashkin's bail despite the fact that two former Agriprocessors managers are alleged to have already absconded to Israel.
The federal prosecutors will have until Thursday morning to decide whether or not to appeal Reade's decision to the 8th Circuit Court of Appeals. The full text of the Register's article can be found here.
Agriprocessors Update: Superseding Indictment Filed & Rubashkin's Bail Review Hearing
Sholom Rubashkin appeared yesterday in court before Linda Reade, the chief federal judge for the northern district of Iowa. During the hearing that began yesterday and is expected to conclude today, Rubashkin's defense team asked Judge Reade to overturn a decision made by a magistrate last fall to deny Rubashkin bail. Rubashkin has been in jail since Nov. 14, following the worksite immigration-related enforcement raid which occurred in Postville, Iowa, on May 12, 2008.
This article in yesterday's Des Moines Register does an excellent job of highlighting some of the hearing's more interesting moments. Notably, prosecutors confirmed that two other former Agriprocessors managers are believed to have fled to Israel instead of facing charges in the United States. Count 12 of the superseding indictment filed on January 15, 2009, reveals that one of these former managers is believed to be Hosam Amara. The Register article also notes that Amara is alleged to have repeatedly contacted people in northeast Iowa from his location abroad. Concern over Rubashkin's potential flight to Israel is what caused the magistrate last fall to deny Rubashkin bail. As I mentioned earlier, Rubashkin's bail hearing is expected to conclude today, and I'll update this post once Judge Reade has ruled on the matter.
Also, as I mentioned in passing, on January 15, 2009, the grand jury filed a superseding indictment against defendants Agriprocessors, Inc., Sholom Rubashkin, Brent Beebe, Hosam Amara, and Zeev Levi. The 99 count indictment alleges that the defendants committed some or all of the following crimes: conspiracy to harbor undocumented aliens for profit, harboring and aiding and abetting the harboring of undocumented aliens for profit, conspiracy to commit document fraud, aiding and abetting document fraud, aiding and abetting aggravated identity theft, unlawful flight to avoid prosecution, bank fraud, false statements and reports to a bank, money laundering and aiding and abetting, and finally, willful violation of an order of the Secretary of Agriculture and aiding and abetting the same. The full text of the superseding indictment can be found here.
The Advantages of Carrying Multiple Passports?
Behold, the high-flying world of people who hold multiple passports from different countries. Whether for ease of travel, ease of work or perceived notions of safety, the NYT seems to think that more and more people are nowadays holding passports from multiple countries all at once.
U.S. Consulate in Dubai is Temporarily Closed
Based on security concerns the U.S. consulate in Dubai, United Arab Emirates, will be closed today, January 21, 2009. The closure means that there will be no routine U.S. citizen services today, and also, no visa interviews. I'm assuming the State Department will soon provide those who were supposed to attend visa interviews today with a make-up date. For further information, see here.
Napolitano's DHS to Shift Focus to Prosecuting Employers
At yesterday's confirmation hearing Janet Napolitano signaled what some in the media are calling a "clear break" with the outgoing Bush administration's worksite enforcement protocol and priorities. I'm not sure I would term it a clear break, but her comments do portend a shift in emphasis. This much seems clear: the stepped-up level of worksite enforcement employers around the U.S. have been experiencing over the last 2-3 years will continue. In that way Napolitano isn't at all changing the agency's direction. However, Napolitano stated clearly that DHS' emphasis under her watch would shift away from the prosecution of illegal workers and will double-down, instead, on the prosecution of the employers who hire the illegal workers. So that, apparently, is where the new administration's policy change will most manifest itself.
In short, employers beware. My best advice to employers is to get in touch with your attorney and arrange to get yourself a serious worksite immigration and hiring practices compliance program. Spending a little bit of your resources right now on compliance training will save you many nights of sleep and, in some cases, may even prevent the prosecution of you and your staff.
