Category: Immigration

Immigration, the Midterm Elections, and DACA

Published by Brett Holubeck on November 8, 2018

Image of the US Capitol Building to show that Congress may decide the fate of DACA — Photo by Louis Velazquez on Unsplash

Immigrants are an important part of the workforce. “In 2017, there were 27.4 million foreign-born persons in the US labor force,” which is 17.1% of the total workforce. In the recent midterm election, according to the exit polls, immigration was the 2nd most important issue in the country with 23% of respondents believing that it was the most important issue in the country. This should come as no surprise given the number of different immigration issues that have happened during the Trump administration.

In recent weeks, two major immigration changes have occurred. On Monday, the Department of Justice petitioned the Supreme Court to determine whether President Trump can end the DACA program. The TN (NAFTA) visa survived unscathed in the new trade agreement between the US, Mexico and Canada. This visa had previously been on President Trump’s hit list.

The Supreme Court and DACA

DACA (the Deferred Action for Childhood Arrivals) protects certain people that were brought to the US as children from deportation and allows them to get a job or attend school. They cannot obtain permanent residency through the program but may obtain work authorization and continue to reside in the country. There are currently nearly 700,000 people that are in the DACA program. The program was slated to end before a judge ruled that the government must reinstate the program and accept applications again in August. Earlier today the Ninth Circuit ruled that the Trump Administration cannot end the DACA program immediately. They found that California and the others challenging the Trump administration’s decision to end the program would succeed in their case against the administration.

The sister program of DACA, DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents program) was ended by the Supreme Court in 2016 in a 4-4 decision. It would have allowed the parents of certain US citizens and permanent residents to continue to work and continue to live in the US. Unlike DACA, it was never put into effect. DACA’s fate at the Supreme Court will be determined by the 2 most recent Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.

It is unclear what will happen with DACA. Trump has expressed support for continuing the program but wants Congress to act. With the new Democratic Congress this may be something that both parties are willing to work on. If they cannot agree, then eventually Supreme Court will likely review the issue and over 700,000 people will be affected by the decision.

Trump and Immigration Visas

The TN visa was saved in the trade agreement between the US, Mexico, and Canada even though Trump and high-ranking senators opposed the visa. The visa allows certain professionals from Canada and Mexico to work in the US. The fact that the visa was not changed is a surprise because the current administration has been aggressive in attempting to reduce the number of visas through its Buy American and Hire American executive order.

This executive order calls for changing the H-1B visa, which is given to workers in specialty occupations that require theoretical or technical expertise. Most workers on this visa are in the tech industry or work with technology. Reforming the H-1B program has support on both sides of the aisle with Democratic Senator Dick Durbin, Sherrod Brown, and other Democrats supporting a change to the program. Some form of comprehensive immigration reform between the Democratically controlled House, the Republican Senate, and President Trump may address both the H-1B visa and the DACA program. It is an area where there seems to be some agreement on both sides of the political spectrum and the issue is important enough to be addressed.

Conclusion

Immigration issues are constantly changing in this administration and will continue to evolve. Both Democrats and Republicans have called for reforming certain visas and continuing the DACA program. The administration, the new Democratically controlled House, and the Republican Senate will eventually need to resolve DACA and may enact a comprehensive immigration reform that fixes DACA, certain visas, and perhaps the permanent residency process. DACA and other immigration problems are quickly coming to a head and require Congress to act to set some clear parameters around the issues. Surprisingly, there does seem to be some agreement between the Democrats and Republicans on the issue. The only question is whether they can work together to find a solution.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

I-9’s and Immigration in the Age of Trump

Published by Brett Holubeck on August 17, 2018

Immigration and Customs Enforcement (ICE) has increased the number of I-9 audits that it has conducted to around four times as many I-9 inspections (Notices of Inspection) in the first seven months of 2018 as it did in the prior fiscal year. ICE conducted 5,278 Notices of Inspection since January 2018. The reason that the government has increased the number of inspections is clear. They fit with Trump’s agenda to strictly enforce immigration laws.

Unfortunately, many businesses do not regularly audit their I-9’s and those that do often make errors that cannot be corrected. In today’s climate, no business can afford to be unprepared for an I-9 inspection. Luckily, there are a few simple steps that employers can take to help prepare for these unanticipated inspections which frequently occur because an employee or someone else tipped off ICE.

When to Review I-9’s

Before an I-9 audit occurs, you have the opportunity to review and correct your I-9’s. ICE considers self I-9 audits that occur before a Notice of Inspection more favorably than an audit that occurs after ICE has already served a Notice of Inspection. However, if ICE has already served a Notice of Inspection, then it is often a good idea to make changes. Fines from a Notice of Inspection can be substantial.

Can You Prevent a Problem?

Employers make a number of simple, but critical mistakes when filling out I-9’s. One of the biggest failings of companies is a lack of training. It should go without saying that whoever is filling out the I-9 needs to know how to complete the I-9 to do a good job. Some simple training can help these employees and minimize costly mistakes.

Here are some of the most common mistakes on the I-9:

Forgetting to re-verify the work authorization of employees with an Employment Authorization Document (EAD card).
Reverifying US citizens or permanent residents.
Not completing the I-9 in a timely manner. Section 1 must be signed by the first day that the employee begins work. Section 2 must be completed by the employer no later than 3 business days after the employee begins work. If the employee began work on a Monday, then Section 2 must be completed by that Thursday.
Leaving entire sections blank. Re-check the document while the employee is still there or after you complete it. Take a pencil or pen and touch each box to make sure that something is in each box where information is required (in Section 1 “N/A” should appear in any box that does not apply to the employee).
Keeping I-9’s that could be destroyed. I-9’s are kept for 3 years past the date of hire or 1 year after the end of employment, whichever is later. Always keep I-9’s for current employees.

What’s the Worst that Can Happen?

What if the audit reveals that half of your workforce is not authorized to work? What would you do? Would you be able to continue operating or would you have to shut down? How much would it cost to replace half of your workforce? Could you even operate without half of your workers? This is exactly what happened to St. Agnes Bakery when it was determined that half of its workers were not authorized to work after an inspection in January.The facility remains closed more than 6 months later.

Employers will also be fined for violations. The inspector’s job is to see if you are not following the proper I-9 procedure and to fine you or take other corrective action against you.

Prevention is key. Make sure that you regularly audit your I-9’s and correct any errors. An audit can save you a lot of time and prevent potential problems. While I-9’s may seem like just another paper that employees need to fill out when they begin working, there are serious consequences when employers fail to follow the law.

The information provided is my own and does not reflect the opinion of my firm or anyone else

Beware of ICE! What to Do During an ICE Raid

Published by Brett Holubeck on July 29, 2018

An Immigration and Customs Enforcement (ICE) raid can devastate a company and its employees. Unfortunately for employers, President Trump has dramatically increased ICE raids. According to the Des Moines Register, “ICE agents have arrested an average of 4,143 undocumented immigrants without a criminal record each month under the Trump administration compared to an average of 1,703 arrests per month under Obama.” ICE has conducted 6 major ICE raids this year with several of these raids involving the arrest of more than 100 individuals from one company. The meat packing and the horticulture industries in particular have been the targeted.

In a June raid on a flower and garden center, the extremes that ICE will go to in a raid were revealed. In this raid, undercover ICE officers went to the break room and began passing out Dunkin Donuts to the staff. ICE struck while employees gathered in the break room; ICE took 114 undocumented workers into custody. What is most interesting about this raid is that some employee unwittingly granted undercover ICE agents access to the employee break room. The raid serves as a great reminder that ICE will conduct these raids undercover and employers must train their staff to adequately respond to a raid.

What can companies do to protect themselves and their employees?

Train your supervisors and staff that interact with visitors. Just because ICE shows up at your business does not mean that they are authorized or permitted to be there. ICE officers are allowed to go undercover and do not need to disclose that a raid will occur. However, without a warrant signed by a judge they are not allowed in the non-public areas of private property unless the owner or authorized staff member allow them to enter. Employers can refuse to let ICE enter without a warrant. If ICE does not have a warrant, then employers may feel free to ask the ICE officers to leave. In addition, there is a difference between a warrant issued by ICE and a warrant signed by a judge. You can train your staff to recognize the difference between these warrants and to read the warrant to ensure that the search is limited to what is specifically listed in the warrant. By training your supervisors you can further enhance your ability to respond to an ICE raid.

The best way to respond to an ICE raid is to prevent yourself from being a target of ICE. Employers should do their best to comply with the law. Here are some general tips:

First, depending on your workforce and the labor pool, many employers consider adopting E-Verify, which is a tool that allows you to check a new hire’s authorization to work. This will eliminate many people that are not authorized to work, but it will also reduce the size of your labor pool.
Second, you must train your staff that complete the I-9 (the form that must be completed at the beginning of employment) to detect fake ID’s and other fraudulent documents.
In addition, many employers avoid liability by regularly auditing their I-9’s with the assistance of an attorney or other professional. There are a number of complex I-9 issues. One of the most frequent is that employees on DACA or those that have employment authorization documents can lose their authorization to work. Employers must be prepared to reverify these employees to ensure that they are still authorized to work and to take proper corrective action, including termination, if the employee loses their work authorization.

Finally, ICE also conducts I-9 audits (Notices of Inspection). An ICE officer appearing at a business may be coming to serve a Notice of Inspection rather than to conduct a raid. Employers have 3 days to respond to these notices and it is important that you or a supervisor do not waive the 3-day period. There are a number of corrective actions that can be taken during the 3-day period, so it is important to take immediate steps once you become aware of a Notice of Inspection.

One thing is certain. These raids will not stop. ICE will conduct more raids, take more undocumented workers into custody, and break up more families. By forming an action plan to respond to or prevent an ICE raid, companies may limit their liability, help their employees, and eliminate the risk of being forced to replace a large portion of their staff on short notice. Finally, any company that is raided will face penalties (potentially criminal), fines, and will need to find new workers to replace the ones that it lost.

The information provided is my own and does not reflect the opinion of my firm or anyone else.