Immigration Law

Sen. Franken Helps Small Businesses and Regular Folks with the I-9 Process

"[H]e persuaded his colleagues on the Senate Judiciary Committee to adopt by voice vote an amendment (Franken 4) to the Gang of Eight's comprehensive immigration reform (CIR) bill, S. 744.  If CIR is enacted with Franken 4 included, it would establish within U.S. Citizenship and Immigration Services (USCIS) an "Office of the Small Business and Employee Advocate" (the SBE Advocate), whose purpose would be to "assist small businesses [firms with 49 or fewer employees] and individuals in complying with the [Form I-9 (employment-eligibility-verification) requirements" of the immigration laws, "including the resolution of conflicts arising in the course of attempted compliance with such requirements."

The new role for the SBE Advocate complements the expanded authority of the USCIS Ombudsman under another amendment engrafted onto S. 744.  Like the Ombudsman, the SBE Advocate is empowered to provide assistance to the public, resolve I-9 compliance problems and make recommendations for changes to immigration laws and regulations.  

Unlike the bully-pulpit authority of the Ombudsman, however, the SBE Advocate would be authorized to issue an "Assistance Order" if any employer (not just a small business) or an individual has suffered or will likely suffer a "significant hardship" relating to I-9 compliance.  The SBE Advocate can also consider "significant hardship" more favorably to the small business or individual if USCIS does not follow its own "applicable published administrative guidance" and require the Secretary of Homeland Security under the terms of an Assistance Order:

  • to cease any action, take any action, or refrain from taking any action, with respect to the small business or individual under the I-9 provisions of the immigration laws; 
  • to determine whether any employee is or is not authorized to work in the United States; or 
  • to abate any penalty under such laws that the SBE Advocate determines is inappropriate or excessive.

The anticipated creation of the Office of SBE Advocate follows on the longstanding difficulties encountered by small businesses in trying to comply with immigration law requirements and the more recent laudable attempts by USCIS to espouse (and, alas, inconsistently demonstrate) support for small-business entrepreneurship under that agency's Entrepreneurs in Residence program, which has provideduseful training to its adjudicators and continues to grow." - Angelo A. Paparelli, May 19, 2013.