Immigration Law Compliance by ygs12945

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									        Immigration Law Compliance
              New Challenges for the
        Transportation Construction Industry

2007 FTBA/FDOT Statewide Construction Conference




                Constangy, Brooks & Smith, LLC
 Phillip B. Russell, Esq.
Labor and Employment Lawyer
FTBA Member since 2006
Constangy, Brooks & Smith, LLC
 • 100 North Tampa Street, Suite 3350
 • Tampa, FL 33602
 • (813) 222-1354 (direct dial)
 • (813) 966-6598 (cell phone)
 • prussell@constangy.com
 • www.constangy.com

            Constangy, Brooks & Smith, LLC
Program Overview
  Basic Legal Requirement
     Undocumented workers
  Statistics and History
     “It’s no fun being an illegal alien . . . .”
  IRCA (1986)
  Enforcement Problems
     Document Fraud
     Social Security Number Mismatches
  Reform Proposals
     Guest workers
     Close the borders
  What employers should be doing now!
                        Constangy, Brooks & Smith, LLC
The Basic Rule . . .


    An individual who is not a U.S. citizen or U.S.
    permanent resident (green card holder) cannot visit
    or reside in the U.S. without permission.

    Similarly, such individual cannot work in the U.S.
    without permission.



                     Constangy, Brooks & Smith, LLC
Illegal Immigration Statistics

12 million undocumented men and women
currently in the U.S. who are parents to:
  1.6 million undocumented children
  3 million children who are U.S. citizens by virtue of
  their birth in this country
  At least 3 million of these undocumented persons
  have lived in the U.S. for 10 years or more



                 Constangy, Brooks & Smith, LLC
Dramatic Increase in Illegal Immigration

 The PEW Hispanic Center estimates that
 between 1990 and 2000 5.5 million
 immigrants settled unlawfully in the United
 States.




              Constangy, Brooks & Smith, LLC
Immigration Demographics
   The Urban Institute estimates that 55% to
   60% of the more than 10 million illegal
   immigrants in the U.S. are from Mexico.
   Of the remaining 40% to 45%, two-thirds are
   of Hispanic origin.




                Constangy, Brooks & Smith, LLC
Immigration Law History

 Sometimes called this country’s longest-
 running experiment in social engineering.
 During its first century, the U.S. was
 essentially open to all immigrants.
 In 1882, Congress passed the Chinese
 Exclusion Act.
 In the 1920’s , Congress passed the National
 Origins Plan – intended to forever freeze the
 U.S. ethnic mix as it had been in 1910
 (predominantly northern European).
               Constangy, Brooks & Smith, LLC
Immigration Law History

 1820-1840 – immigration was 80% from
 Europe, 6.1% from the Americas, and 13.9%
 from other continents.
 1920-1940 – immigration was 60.5% from
 Europe, 36.1% from the Americas, 2.8%
 from Asia and .6% from other continents.
 1970-1990 – immigration was 11.8% from
 Europe, 51.7% from the Americas, 34.1%
 from Asia, and 2.5% from other continents.
              Constangy, Brooks & Smith, LLC
Immigration Law History
1965 – Congress did away with ethnic quotas
and restructures the immigration laws.
1965 changes to immigration laws –
  Numerical limitation on immigration from any
  single country in any fiscal year, with a strong
  preference given to people with close relatives in
  the United States.




                Constangy, Brooks & Smith, LLC
Immigration Law History

Most significant 1965 change is family-based
immigration.
  LPR’s can sponsor spouse and minor children.
  Once they get green cards, they can sponsor their
   spouses and minor children.
  After five years in LPR status, they can apply for
   citizenship.
  USC’s can sponsor spouse, minor children, adult
   unmarried children, parents, and siblings.




                   Constangy, Brooks & Smith, LLC
Immigration Law History

 Family sponsorship over time has led to huge
 backlogs of people entitled to immigrate to the U.S.
 (i.e., get green cards). There are numerical limits on
 the number of people who can immigrate to the U.S.
 in each fiscal year.
     For example: Waiting period now for siblings of
     U.S. Citizens is over 14 years.
     (So there are already millions of people out there
     who are already in line to legally immigrate to the
     U.S.)
                  Constangy, Brooks & Smith, LLC
Immigration Law History

 In 1965, change in the law coincided with the rise of
 affordable air travel.
 Millions of foreigners discovered they could fly into
 the United States for a “vacation” and never leave.
 It is estimated that 30%-40% of the approximately
 12 million illegal aliens now in this country are people
 who entered lawfully but stayed beyond the
 expiration date of their visas.



                  Constangy, Brooks & Smith, LLC
IMMIGRATION REFORM AND
CONTROL ACT

  In 1986, Congress decided to involve the private
  sector with immigration enforcement.
  Employers would be required to verify that all new
  hires were authorized to work in the United States.
      The concept:

If they can’t get hired, they’ll stop coming to the U.S.


                    Constangy, Brooks & Smith, LLC
IMMIGRATION REFORM AND
CONTROL ACT
Employer is require to complete Form I-9 for
all new hires.
Typical documentation shown by the new hire
is a driver’s license and social security card.




              Constangy, Brooks & Smith, LLC
IMMIGRATION REFORM AND
CONTROL ACT
 • Rather than ending illegal immigration,
   the new law spawned a cottage industry
   of bogus social security cards, and
   created issues with drivers licenses.




               Constangy, Brooks & Smith, LLC
EMPLOYER RESPONSIBILITY TO VERIFY
WORK AUTHORIZATION

 The law requires that the employer complete Form I-
 9 for each new hire, and physically see the required
 supporting documentation (again, usually a drivers
 license and a social security card)
 Employers do not have any obligation to contact the
 Social Security Administration to ask whether the
 numbers and names match.
 So long as the employer has a properly-filled out I-9
 form on file, even if CIS locates undocumented
 workers, these employers would not be fined.

                 Constangy, Brooks & Smith, LLC
EMPLOYER RESPONSIBILITY TO VERIFY
WORK AUTHORIZATION


   Re-verification issues - -
     Expiring work cards
     Conditional green cards
     10-year green cards



             Constangy, Brooks & Smith, LLC
ISSUES WITH WORK AUTHORIZATION
VERIFICATION

  Violates the law to ask for “more”
  documentation
  Unusual documents (tribal documents)
  Work authorized “incident to status”




             Constangy, Brooks & Smith, LLC
ISSUES WITH WORK AUTHORIZATION
VERIFICATION


 On-line system now available to verify correctness of
 social security numbers or immigration documents for
 new hires
            https://vis-dhs.com/employerregistration

 Many employers choose simply to fill out Form I-9
 and not do further verification.



                 Constangy, Brooks & Smith, LLC
Undocumented Workers – Illegal Aliens

 Root cause of illegal immigration is unavailability of
 work visas.
    H-1B: Need university degree or equivalent
    and job must require that level or
    education.
    H-2: Visas available for seasonal or
    temporary work (agriculture, resorts).



                  Constangy, Brooks & Smith, LLC
Undocumented Workers – Illegal Aliens

  Annual Cap on H-1B work visas – They ran out in mid-
  August last year. This meant no new H-1B visas available
  for start dates sooner than October 1, 2006.
  The application period for the next year’s H-1B visas
  started on April 1, 2006. The “Cap” may be reached as
  early as June this year. After that, no new H-1Bs until
  October 1, 2007. (Of concern to recent graduates with
  OPT work cards.)



                   Constangy, Brooks & Smith, LLC
The Labor Problem

    In general, there are not work visas
    available for jobs in construction,
    food service, housekeeping,
    landscaping and janitorial industries.



              Constangy, Brooks & Smith, LLC
IMMIGRATION ENFORCEMENT
  Between 1990 and 2000, the number of
  Border Patrol Agents was increased from
  3,600 to 10,000.
  Between 1990 and 2000, illegal immigration
  rose by some 5.5 million persons.




               Constangy, Brooks & Smith, LLC
IMMIGRATION ENFORCEMENT
   So how do they get here? Walk across the
   border/smuggled in vehicles.
   If caught, they are sent back across the border,
   and often they try again.
   OTM’s (“Other Than Mexican”) – If caught, their
   biographic information and fingerprints are
   taken, and then they are released with
   instructions to report back on a certain date.
   (Bush Administration has announced a phase-
   out of this program.)


                 Constangy, Brooks & Smith, LLC
IMMIGRATION ENFORCEMENT

  How do they stay without being deported? There is
  virtually no enforcement once they make it into the
  U.S. The focus is on criminal aliens, smugglers, and
  those who produce and sell false identify documents.
  Additional focus on airline and supporting industries.

  The Department of Homeland Security (“ICE”) simply
  lacks the resources to seek out and apprehend illegal
  aliens/undocumented workers.




                  Constangy, Brooks & Smith, LLC
    The I-9 Verification Process:
    Established by the Immigration Reform
     & Control Act of 1986.




     For the first time, penalties applied to
      employers who hired unauthorized
      workers.
                 Constangy, Brooks & Smith, LLC
The Basic Employer Obligations
   Cannot knowingly hire or continue to
  employ any person without authorization
            to work in the U.S.



 Must verify the employment eligibility of
           every person hired.

              Constangy, Brooks & Smith, LLC
Independent Contractors
   The contractor must be truly “independent.”

   Employers cannot use staffing agencies as a
   shield from penalties for knowingly hiring
   unlawful workers.

   I-9 issues can be addressed in contracts with
   staffing agencies.
                 Constangy, Brooks & Smith, LLC
What Documents Must Be Presented?
                   EITHER
  One document from List A (identity and
   employment authorization)
                      OR
  One document each from List B (identity) and
   List C (employment authorization)

  The choice of documents belongs exclusively to
                    the employee.

                 Constangy, Brooks & Smith, LLC
        Top 10
I-9 Compliance Mistakes




      Constangy, Brooks & Smith, LLC
#10
I-9 Records Not
Segregated From
Other Personnel
Records


          Constangy, Brooks & Smith, LLC
#9
Failure to Monitor
Expiration of Temporary
Work Authorization




       Constangy, Brooks & Smith, LLC
#8
Mishandling
Photocopying of
Verification
Documents

            Constangy, Brooks & Smith, LLC
#7
Employer
Accepts
Documents That
Do Not “Appear
on Their Face”
to Be Genuine
          Constangy, Brooks & Smith, LLC
#6
Employer Accepts
Photocopies of
Employee’s
Verification
Documents
          Constangy, Brooks & Smith, LLC
             #5
Employer Fails to Complete the
    Section 2 Date Block




          Constangy, Brooks & Smith, LLC
#4
Overdocumentation




    Constangy, Brooks & Smith, LLC
#3
Employee and/or Employer
Fails to Sign and Date I-9
Form




         Constangy, Brooks & Smith, LLC
#2
Employee Fails to Complete
Section 1 “Status” Block




            Constangy, Brooks & Smith, LLC
#1
I-9 Form Not Timely
Completed




           Constangy, Brooks & Smith, LLC
Social Security Mismatch Letters




           Constangy, Brooks & Smith, LLC
Social Security Mismatch Letters
  Who gets them?
    Generally, employers with more than 10 employees
    with mismatches.

    Each mismatched employee also receives his or her
    own letter.

  Why are they sent?
    Named employees’ records conflict with W-2
    information reported by employer.

    Social Security seeks to correct the information so
    that they can reduce funds held in a “suspense”
    account.
                    Constangy, Brooks & Smith, LLC
An employee may appear on a
mismatch letter if:
   They failed to report a name change to SSA.
   Transcription errors were made in the
   employer’s records.
   The name or social security number was left
   blank on the W-2.
   SSA is in error.
   Or, possibly,
   The employee presented a fake social
   security number or a forged card.
                   Constangy, Brooks & Smith, LLC
Enforcement
   The SSA has no power to enforce.
      but
   IRS plans to fine up to $50 per W-2
   per year in the near future.




              Constangy, Brooks & Smith, LLC
Steps for the employer
1. Make no adverse assumptions about the
   employee’s immigration status.
2. Take no immediate personnel action.
3. Review employer records and W-2
   forms for transcription errors.
4. Ask employee to verify that his or her
   social security number is correct.

                Constangy, Brooks & Smith, LLC
5. If an employee indicates that the social
   security number is correct, ask SSA to
   double check.
6. If employee provides corrected
   information or a new number, report the
   new information to SSA and update your
   records.
              Constangy, Brooks & Smith, LLC
If employee presents a new,
different social security card:
    If the employer has a consistently applied
    policy of termination for application fraud
    and is certain that fraud was committed,
    employee is terminated per this policy.

    Otherwise, the employee’s records are
    updated with the new number.


                 Constangy, Brooks & Smith, LLC
If an employee fails to provide
corrected information:
    Termination may occur under a consistently
    applied policy requiring every employee to
    possess a valid social security number for
    withholding purposes.

    Otherwise, corrected information must be
    solicited from the employee every year to
    protect the employer from IRS fines.

                 Constangy, Brooks & Smith, LLC
Repeat Offenders:
   Some employees may present new social
   security numbers year after year.

   In this situation, the employer may wish to
   establish a “3 strikes” policy.




                 Constangy, Brooks & Smith, LLC
I-9s: The “essentiality” test:
    The I-9 is affected by the mismatch letter if
    the social security card is essential to the I-9
    and SSA confirms that a mismatch does
    indeed exist.

    In this case, once SSA confirms that the
    information is correct, the employee should
    be asked to present additional proof of
    employment eligibility.
                   Constangy, Brooks & Smith, LLC
DOCUMENT FRAUD
  Most states have tightened up their
  requirements in the past year or so for
  obtaining a drivers license. (Delays even for
  visa holders.)
  Real ID Legislation




                Constangy, Brooks & Smith, LLC
DOCUMENT FRAUD

 The Immigration Service is seeking to
   investigate sources of bogus social security
   cards.




                 Constangy, Brooks & Smith, LLC
EXPANDING GROUNDS OF EMPLOYER
LIABILITY – WAL-MART AND RICO CASE


 RICO class action arising out of a CIS raid on multiple
 Wal-Mart stores which had subcontracted out their
 evening janitorial work.
 Allegation was a conspiracy between Wal-Mart
 management and subcontractors to use illegal aliens
 as workers and require long hours or low wages, on
 a theory that these workers were unlikely to
 complain.
                  Constangy, Brooks & Smith, LLC
EXPANDING GROUNDS OF EMPLOYER
LIABILITY



 Use of “temp” agencies.
 Sub-contractors
 Employee acting as “recruiter”



             Constangy, Brooks & Smith, LLC
THE GUEST WORKER PROPOSAL
  Would permit foreign workers to obtain legal status
  as “guest workers” or “temporary workers” if they
  can fill positions for which no U.S. workers can be
  found.
  Temporary legal status would be granted for 3 years,
  and would be renewable for 3 years.
  The “guest worker” would not automatically convert
  to a permanent resident or green card holder under
  this proposal.
  400,000 guest worker visas each year



                  Constangy, Brooks & Smith, LLC
THE GUEST WORKER PROPOSAL
  Keep in mind that the guest worker program would
  not be limited to workers form Mexico and Central
  and South America–also eligible would be workers
  from China, India, the Philippines –every country in
  the world (economic refugees).

  Children born in the U.S. to guest workers are
  automatically U.S. citizens.



                  Constangy, Brooks & Smith, LLC
IMMIGRATION REFORM
  Employers must use the on-line
  verification system.
  Employers must document steps taken
  in response to Social Security
  mismatch letters.



            Constangy, Brooks & Smith, LLC
Thank You!




  Constangy, Brooks & Smith, LLC

								
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