Employers by chenmeixiu

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									     Overview of Immigration Issues
               Related to:
       Family, Criminal, Business
         and Employment Law

Washington County Continuing Legal Education Program
           Washington County Law Library
                   April 28, 2010

                   Julie A. Roorda
                 Ballou Law Partners
              www.balloulawoffice.com
                          &
                   Royee Vlodaver
              Vlodaver Law Offices, LLC
                  www.vlodlaw.com
 Basic Immigration Terminology

                • Alien
             • Immigrant
        • Permanent Resident
           • Nonimmigrant
• Department of Homeland Security –
             CIS, ICE, CBP
      • Removal = Deportation
                     Employers

Form I-9 (Employment Eligibility)
Must establish both identity and
  employment authorization
  – Can accomplish both with one document:
     • U.S. passport
     • Resident alien or alien registration card
     • Foreign passport or immigrant visa (with I-551
       stamp)
     • Form I-766 (Employment Authorization)
                  Employers
May establish each requirement individually

1) Establishing identity:
  – Driver’s license
  – ID card (with picture) issued by
    federal, state or local government
  – School ID
  – Voter registration card
  – U.S. military card
                   Employers
May establish each requirement individually

2) Establishing employment authorization:
  – Social Security Account Number card
  – Certification of Birth Abroad (Form FS-545) or
    Report of Birth (Form DS-1350)
  – Birth certificate (original or certified copy)
  – U.S. citizen ID card (Form I-197) or resident citizen
    in U.S. ID card (Form I-179)
                     Employers
                   Must retain (physical or electronic):
                      – Form I-9 – signed/attested to by
                        employee; AND
                      – Supporting documents – identity and
                        employment authorization


Must retain for period of:
  – 3 years following date of hiring, OR
  – 1 year after employment is terminated, whichever
    is later
     • 8 U.S.C. § 1324a(b)(3)-(4)
                   Employers
Good faith compliance

• “[C]onsidered to have complied … if there was
  a good faith attempt to comply with the [I-9]
  requirement”

• Expressly provides affirmative defense
     – 8 U.S.C. § 1324a(a)(3), (b)(6)
                    Employers
     Good faith exceptions – waived if employer:

• Received notification of violation;
  – Was given a period of time to correct
    noncompliance (not less than 10 days); and
  – Failed to voluntarily comply within that period

• “[H]as or is engaging in a
  pattern or practice” of
  violation
     • 8 U.S.C. § 1324a(b)(6)(B)-(C)
                     Employers
Federal Immigration Reform and Control Act of
  1986 (IRCA)

Unlawful for “a person or other entity” to “hire,
 or to recruit or refer for a fee, for employment
 in the United States an alien knowing the alien
 is an unauthorized alien”
     • 8 U.S.C. § 1324a (a)(1)-(a)(1)(A)
                     Employers
“Hired” includes use of a
  “contract, subcontract, or
  exchange” to obtain the labor
     • 8 U.S.C. § 1324a(a)(3)


Unlawful “to continue to
 employ” an alien that has
 become unauthorized
     • 8 U.S.C. § 1324a(a)(2)
                             Employers
Knowledge – may be actual or constructive
Constructive: if fairly inferred from facts and circumstances
       • 8 C.F.R. § 274a.1

Examples of constructive knowledge:
   1. Improperly completed I–9
   2. Information indicating unauthorized to work (e.g., Labor
      Certification, Application for Prospective Employer)
   3. Acting with “reckless and wanton disregard for the legal
      consequences of permitting another individual to introduce an
      unauthorized alien into its work force or to act on its behalf”
       • 8 C.F.R. § 274a.1
                     Employers

Must avoid discrimination
  • Cannot base employment decisions on factors not
    related to employment authorization

  • Cannot infer unauthorized status based on
    “foreign appearance or accent” or national origin
     • 8 C.F.R. § 274a.1; 8 U.S.C. § 1324b(a)(1)
Employers

   Penalty for IRCA violations:
     – Cease and desist order

     – Civil penalties

     – Criminal penalties
     – “[O]ther remedial action
       as is appropriate”
        • 8 U.S.C. § 1324a(e)(4)(B)
                           Employers
Civil penalties:
• 1st offense: $250 – 2,000
   • Each unauthorized alien “hired” or employed
• 2nd: $2,000 – 5,000
• 3rd or more: $3,000 – 10,000
       • 8 U.S.C. § 1324a(e)(4)(A)


Criminal penalties:
• If engaging in a “pattern or practice” of violating the Act
• Up to $3,000 per unauthorized alien; imprisonment for no
  more than six months (total); or both
       • 8 U.S.C. § 1324a(f)
             Starting a Business
Basic requirement for forming a corporation or
  LLC (limited liability company) in MN
  – Must be “natural persons of at least 18 years of age”
     • Minn. Stat. § 302B.105 (incorporators of a corporation)
     • Minn. Stat. § 322B.105 (organizers of an LLC)


     MN does not specifically require any
      particular citizenship or immigration
      status in order to form a business entity
            Starting a Business
Only express citizenship requirement is for S
 corporations
   – Internal Revenue Code: S corporations prohibited from
     having any nonresident aliens as shareholders
        • 26 U.S.C. § 1361(b)(1)(C)


No other MN or IRC provisions restricting
citizenship of shareholders or owners of other
business organizations
    – Implication: no citizenship requirements
                Starting a Business
HOWEVER* Potential concerns if a business partner
  (e.g., shareholder, LLC member) is an alien. Brd. of
  Governors? Brd. of Directors?
   – IRCA: harboring, concealing, or shielding?
   – Is the alien an “employee”?
       • Employee: “an individual who provides services or
         labor for an employer for wages or other remuneration
         but does not [include] independent contractors” - 8
        C.F.R. § 274a(1)
      • Generally, LLC members are not considered employees – unless
        actually employed by the LLC
   – Other concerns: taxation, disclosures, fraud
               Business Issues
• The most common businesses we deal with
  that have such potential employment issues
  are family owned/operated businesses in the
  food/vending/service industry.
  – Implications for vendors?
  – Implications for customers?
     • Many times no business insurance
     • Many times no contracts
     • Many times no entity
             Landlord/Tenant
• Can a landlord check immigration status
• Can you choose not to rent to non-citizens,
  illegal immigrants
• Subsidized housing vs. Private housing
• Penalties for declaring you are a citizen on a
  rental application
• Landlord considerations – commercial v.
  residential
    Landlord/Tenant
Numerous U.S. municipalities have
 enacted ordinances prohibiting leases
 to illegal aliens…
  – However, Federal courts have consistently
    invalidated them
     • Unconstitutional and preempted by Federal
       law

• No MN municipalities have enacted
  such ordinances.
               Landlord/Tenant
Immigration Reform and Control Act (IRCA) may
  also govern landlord/tenant relationships
Crime for any person who “conceals, harbors, or
  shields from detection” an illegal alien
  – Requires knowledge or “reckless disregard of the
    fact” that he/she is an illegal alien
  – Includes: attempting, aiding or abetting, and
     conspiracy to commit
     • 8 U.S.C. § 1324(a)(1)(A)(iii)
                     Landlord/Tenant
Criminal penalty – concealing, harboring or shielding from
   detection (or, aiding or abetting)
       • Fines (unspecified); up to 5 years imprisonment; or both
            – 8 U.S.C. § 1324(a)(1)(B)

Conspiracy to commit or committing such acts with the
  “purpose of commercial advantage or private financial
  gain”
• Fines (unspecified); up to 10 years imprisonment; or both
   – 8 U.S.C. § 1324(a)(1)(B)
            Landlord/Tenant
Jurisdictions have decided “harboring” cases
  vastly differently, yet few have described
  “substantial facilitation”
• Apparent lack of clarity on the issue
• Highly dependent on the particular facts and
  circumstances of the situation
             Landlord/Tenant
Desire to avoid IRCA violations results in
 difficulties in avoiding discrimination
  • Title VIII of the Civil Rights Act of 1968 – Fair
    Housing Act (FHA)

  • Unlawful to discriminate against “any person
    because of race, color, religion, sex, familial
    status, or national origin”
        • 42 U.S.C. § 3604
                 Landlord/Tenant
U.S. Supreme Court
  – National origin: country where a person was born, or
    where a person’s ancestors came from
  – “Congress did not intend the term ‘national origin’ to
    embrace citizenship requirements”
     • Espinoza v. Farah Mfg. Co., Inc. (interpreting national origin in the
       employment context)
     • Several federal district courts (relying on Espinoza)
  – Housing discrimination/decisions based on
    citizenship is legally permissible
               Landlord/Tenant
2001, U.S. Department of Housing &
  Urban Development (HUD) confirmed
  this notion
  • “The [FHA] does not prohibit
    discrimination based solely on a
    person's citizenship status. Accordingly,
    asking housing applicants to provide
    documentation of their citizenship or
    immigration status during the screening
    process would not violate the Fair
    Housing Act.”
                 Landlord/Tenant
Subsidized housing
   – To qualify for federally subsidized housing an individual
     “must be a citizen or a non-citizen who has eligible
     immigration status.”
        • 24 C.F.R. § 982.201(a)
        Citizenship restrictions relating to subsidized
          housing apply to financial assistance under:
   – Section 235 Program, Section 236 Program, Rent
     Supplement Program, HUD’s Public Housing, Section 8
     Housing, Housing Development Grant Program
                 Landlord/Tenant
Ability to make housing decisions based
  on citizenship status is the same for
  private and subsidized housing
   • HUD: “In fact, such measures [to
     determine citizenship] have been in place
     for a number of years in screening
     applicants for federally-assisted housing.”

   • Landlords of either private or subsidized
     housing may inquire about citizenship
     status and consider this information in
     making its rental decisions
            Landlord/Tenant - Review
• Can a landlord check immigration status?
   – Yes.
• Can you choose not to rent to illegal immigrants?
   – Yes.
• Subsidized housing v. private housing?
   – Same treatment.
• Commercial v. residential?
   – Same treatment.
• Penalties for declaring citizenship on rental application?
   – None. It can be considered in landlord’s decision.
Immigration and Family Law




Practice Tips, Common Scenarios and What To
                Watch Out For
          Domestic Abuse




•   U Visas – Victims of Serious Crimes
•   VAWA
•   T Visa – Human Trafficking
•   Other issues
    Immigration and Criminal Law
            Padilla v. Kentucky, March 31, 2010
         Key Points for Criminal Defense Attorneys
1. Deportation is a “penalty,” not a collateral
consequence” of the criminal proceeding
2. The 6th Amendment requires affirmative, competent
advice regarding immigration consequences – silence is
insufficient.
3. Court endorsed “informed consideration” of
deportation consequences by both the defense
and prosecution during plea bargaining.
           General Information
• “Conviction” for immigration purposes = formal
  judgment of guilt entered by court, found guilty but
  adjudication withheld, plea of guilty or nolo
  contendre and person has admitted sufficient facts to
  warrant judgment of guilt
• Term of imprisonment includes suspended time
• A juvenile court disposition is not a conviction for
  immigration purposes
• Crimes include conspiracy and attempt to commit
              Removable Offenses
• Crimes of moral turpitude committed within five years (or 10
  years if LPR) after the date of admission, and sentence of one
  year or longer may be imposed.
• Crime of Moral Turpitude = Crime that is inherently base, vile
  or depraved and contrary to the excepted rules of morality.
• Multiple criminal convictions - any time after admission, two or
  more crimes involving moral turpitude, not arising out of a
  single scheme of criminal misconduct.
• Aggravated felony (Note: life time bar to reentry) - Any alien
  who is convicted of an aggravated felony at any time after
  admission is deportable. DHS definition of “aggravated felony”
  can and often does differ from state and federal criminal
  statutes
              Removable Offenses
                                    Rape
                                   Murder
                          Sexual abuse of a minor
          Crimes of violence (imprisonment of 1 year or mores
                        Drug and firearms trafficking
                             Money laundering
     Structuring money transactions derived from unlawful activity
            Theft offenses (imprisonment of 1 year or more)
                             Gambling offenses
Offense involving fraud or deceit in which loss to victims exceeds $10,000
      Tax evasion where the revenue loss to govt exceeds $10,000
          Commercial bribery (imprisonment of 1 year or more)
            High speed flight from an immigration checkpoint
                    Failure to register as a sex offender
          And the list continues….
 Controlled substances convictions other than a single offense involving
       possession for one's own use of 30 grams or less of marijuana
                           Drug abusers and addicts
                                Firearm offenses
 Domestic violence crimes, stalking, violation of protection order, crimes
               against children (abuse, neglect, abandonment)
   – Waiver for victims of domestic abuse – not limited to criminal court
                                 record (self-defense)
                                    Espionage
                                    Sabotage
                                     Treason
            Failure to register (Change of Address within 10 days)
Falsification of documents - fraud and misuse of visas, permits, and other
                                entry documents
            And Continues….

                  Falsely claiming citizenship
Public safety and natural security grounds, terrorist activities
         Participation in nazi persecution or genocide
            Serious violations of religious freedom
                          Public charge
                        Unlawful voters
              Thank you!
                  Julie A. Roorda
                Ballou Law Partners
                    Minneapolis
                  612-321-9800
             JRoorda@Blackhole.com
                         &
                  Royee Vlodaver
             Vlodaver Law Offices, LLC
                     Saint Paul
                  651-690-9906
               Royeev@vlodlaw.com

Special Thanks To Peter Banick, William Mitchell 1L,
           Law Clerk, Vlodaver Law Offices, LLC

								
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