Immigration Update for Employment Lawyers

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Continuing legal education presentation to Dallas Bar Associations Labor & Employment Law section on May 18, 2009

Continuing legal education presentation to Dallas Bar Associations Labor & Employment Law section on May 18, 2009

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  • 1. Immigration Updates Every Employment Lawyer Must Know Presented by Ann Massey Badmus, Esq. New Age of Enhanced Enforcement
  • 2. §274A of Immigration and Nationality Act (INA) Employers/Businesses • Must not knowingly hire, recruit, or refer for a fee any individual who is not authorized to work in the United States. • Must not continue to employ an undocumented worker or one who loses authorization to work. • Must not contract or subcontract to obtain labor of known unauthorized aliens New Age of Enhanced Enforcement • Department of Homeland Security – Immigration and Customs Enforcement (ICE) • Department of Labor (DOL) • Department of Justice (DOJ) – Office of Special Counsel • Department of State (DOS) • States and Municipalities
  • 3. Enforcement Measures • Final Orders for Civil Monetary Penalties • Administrative Fines • Administrative Arrests • Criminal Arrests • Criminal Fines and Forfeitures Civil Penalties I-9 violations - $110 to $1110 for each violation Unauthorized employment for offenses occurring on or after March 27, 2008: • $375 to $3200 – 1st offense • $3200 to $6500 – 2nd offense • $4300 to $16000 – more than 2 offenses 8 C.F.R. §274a.10
  • 4. Criminal Penalties Under INA §274A, employers engaged in a pattern or practice of knowingly hiring or continuing to employ unauthorized may be fined up to $3000 for each unauthorized alien and/or imprisonment for up to six months for entire pattern or practice. Other criminal charges – alien smuggling, alien harboring, document fraud, money laundering, fraud or worker exploitation Administrative Arrests •Non-citizens only •Initial step in removal of unauthorized alien •Civil violations of the INA only
  • 5. Criminal Arrests •Non-citizens and citizens •Various offenses including illegal hiring, identity theft, alien harboring •Asset forfeiture •Department of Justice, not ICE
  • 6. New Direction? “ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.” Employment Verification • Hire only those persons authorized to work in the United States • Ask ALL new employees to show documents that establish both identity and work authorization • Complete form I-9 for every new employee - regardless of nationality • Re-verify when required
  • 7. Constructive Knowledge Defined as “knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through exercise of reasonable care, to know about a certain condition.” 8 C.F.R. §274a(1)(l) Examples of Constructive Knowledge • Failure to fill out I-9 form • Failure to re-verify form • Information that an employee is not authorized • Failure to reconcile conflicting information • Hire contractors that you know uses unauthorized workers • Social Security No-match letters (pending litigation)
  • 8. Electronic Verification - E-Verify • Web-based formerly known as “Basic Pilot Employment Verification Program” • USCIS and Social Security Administration • Voluntary participation – for some employers • Supplement to I-9 verification – not a substitute E-Verify Numbers to Think About Errors in the database that E-Verify checks to determine work authorization: • 17.8 million: number of discrepancies in the SSA database • 1 in 25: number of new hires that would receive a tentative non-confirmation based on error rates • 11,000: number of workers per day who would be flagged as ineligible for employment if E-Verify were mandatory for all employers • 96% accuracy rate
  • 9. Who is required to E-Verify • Federal agencies • Federal contractors • Certain State agencies and private employers • Companies located in states that require E-Verify • Employers of STEM F-1 students seeking OPT extension Federal Regulations • Executive Order signed on June 6, 2008 by President Bush • Regulations effective January 19, 2009 and applicable June 30, 2009
  • 10. • Federal departments and agencies within the executive branch (already enrolling with E-Verify to check the status of all new hires within the federal workforce) • Businesses and companies contracting services in the United States for the federal government Expansion of E-Verify E-Verify set to sunset on September 30, 2009, however – $112 million request for E-Verify in President’s budget for development, oversight, training, technical improvements Pending Bills to expand electronic verification LEAVE Act (HR 994) and Employee Verification Act (HR 1096)
  • 11. Immigration Reform and Control Act (IRCA) IRCA prohibits employers with four or more employees from discriminating because of citizenship status against U.S. citizens and certain classes of foreign nationals (permanent residents, temporary residents, asylees/refugees) authorized to work in the United States with respect to hiring, referral, or discharge. Anti-Discrimination Rules Department of Justices agencies - Office of Special Counsel (OSC) http://www.usdoj.gov/crt/osc Equal Employment Opportunity Commission DOJ state partnerships
  • 12. Anti-Discrimination Rules • Unequal treatment because of citizenship or immigration status • Unequal treatment because of nationality, which includes place of birth, appearance, accent and language • Having a citizen-only hiring policy Anti-Discrimination Rules Document Abuse – • Asking for specific documents from employee, such as “Green Card” • Verifying some people’s documents and not others • Re-verifying when not required • Selective application of E-Verify
  • 13. Anti-Discrimination Rules National origin discrimination cases on the rise – Title VII and the other antidiscrimination laws prohibit discrimination against individuals employed in the United States, regardless of citizenship. – In Fiscal Year 2008, EEOC received 10,601 charges of national origin discrimination. Including charges from previous years, 8,498 charges were resolved, and monetary benefits for charging parties totaled $25.4 million (not including monetary benefits obtained through litigation). State Immigration Laws Over 20 states have enacted laws making it illegal for businesses to hire and employ unauthorized immigrants.
  • 14. Arkansas Any business that has a contract with the State must certify that they do not employ or contract with any unauthorized immigrants. Penalties for unauthorized employment included actual damages and cancellation of contract. Louisiana It is unlawful to employ, hire, recruit, or refer any alien who is not legally entitled to reside or work in the United States. Louisiana’s provisions apply to individuals as well as business entities. Penalties include loss of business license and $10000 fine.
  • 15. Oklahoma •All contractors and subcontractors for physical services must verify the work authorization of their employees if they have contracts with a public employer. •To receive State contracts, contractors and subcontractors must participate in E-Verify to verify all information of new employees. •If an employer in Oklahoma fires an employee, while at the same time, continues to employ an unauthorized immigrant, the fired employee may sue the employer for unfair trade practices. Texas – pending legislation – H.B. No. 4486 • Requires E-Verify if contracting with state agency for services • Establishes national origin discrimination if employer discharges a USC or LPR and retains an unauthorized alien in same job category
  • 16. Contractor Compliance • IRS definitions apply • Cannot use contractors or leasing to transfer compliance responsibility • Require I-9 compliance in contracts • Include indemnification clauses in contracts for contractor non-compliance Department of Labor Enforcement •DOL enforces federal labor laws irrespective of immigration status •DOL will only inspect I-9 forms in conjunction with labor standards enforcement only in directed investigations, not complaint-based investigations •INA §274A(b)(3) requires employers to make I- forms available to DOL for inspection •Serious violations of employment eligibility verification rules referred to ICE
  • 17. Department of Labor Enforcement Special Visa Programs Employment of foreign nationals under special visa programs, such as H-1B and H-2A visas, also may be subject to certain requirements related to wages, working conditions, or other aspects of employment. The Wage and Hour Division of DOL investigates alleged violations of some visa program requirements, including H-1B and H-2A visa requirements Department of Labor Enforcement H-1B Visas Requirements •Prevailing Wage •Benching •Change of Location or job duties •Mergers & Acquisitions •Recordkeeping
  • 18. Termination of Employment Return Air Fare to Home Country. Obligation of employer to pay reasonable costs if it terminates the H-1B employment early. Employee only, not family or belongings. Notification to the US Citizenship & Immigration Services. Employer must notify USCIS immediately, otherwise, there may be continuing obligation to pay H-1B employee. No temporary layoff. H-1B employees cannot be benched or temporarily laid off for lack of work. Employer is obligated to pay even if work is not available. Immigration Compliance Plan • Written procedures and policies • Internal Audits and Third-Party Audits • Training and Supervision • Contractor compliance • Response to audit and enforcement actions
  • 19. Written Policy • I-9 procedures • E-Verify • Social no-match letters • Violations reporting and investigations • Training • Multiple locations • Recordkeeping and electronic storage Compliance Audits • I-9 forms and procedures • LCA • PERM files • H-1B dependency • Public access files • Anti-discrimination • No-match letters
  • 20. Training and Supervision • Employment eligibility (I-9) rules • Anti-discrimination rules • E-verify procedures • H-1B and PERM recordkeeping • Contractors • Annual, quarterly training • Supervisor reviews and checks Immigration Counsel • Develop written compliance plans and audit safeguards • Conduct third-party compliance audits • Develop contractor compliance and termination policies • Conduct training and reviews • Advise before immigration-related hiring or firing • Representation during enforcement actions along with employment and criminal attorney
  • 21. QUESTION AND ANSWER SESSION Thank You! Badmus Immigration Law Firm, P.C. 12700 Park Central Drive Suite 1910 Dallas, Texas 75251 469-916-7900 Telephone 469-916-7901 Facsimile www.badmuslaw.com immigration@badmuslaw.com