John Valdez’s Legal Blog

Now is definitely the right time for businesses to review their employment practices for compliance with immigration rules.  The Bush administration is bent on putting the immigration problem on the backs of employers through fines and prosecutions; hence, employers should take precautionary steps to make sure they do not become a target or victim of the stepped up enforcement efforts of the Federal government.

That the government is stepping up enforcement efforts is not debatable.  According to the Transactional Records Access Clearinghouse (TRAC), the number of federal prosecutions for immigration offenses accounted for 58% of all prosecutions for April, 2008.  There were more than three times more prosecutions for immigration cases than for drug offenses.  Moreover, immigration raids have spread to almost all industries, from meat and poultry processing plants, to hotels, to farms, to construction sites, to courthouses, to, most recently, fast food chains.   

ICE recently announced that a McDonald’s Corporation (franchisee) pleaded guilty to crimes related to illegally employing immigrants.  The corporation agreed to pay $1 million in fines.

One way a company can protect itself against liability is to review its I-9 employment verification practices.  Although the Form I-9 looks simple, many employers have trouble understanding the accompanying directions to the forms, decifering the documents that may be used to satisfy the verification rules, learning about the necessary follow-up and retention rules, and appreciating the potential liability involved with the process. 

Smith & Garg immigration attorneys are trained to help employers manage their employment practices to effectively maintain compliance with immigration rules.  If your company needs assistance, please contact us.   

A California Court hit the government where it really hurts, the pocketbook, when it ruled that the USCIS was unreasonable in delaying adjustment of status applications for four years due to pending FBI security checks.  On July 2, 2008, the Court in Shirmohamadali v. Heinauer, No. Civil S-07-1073 DAD (U.S. District Court for the Eastern District of California) ruled that the plaintiff immigrants were not only entitled to adjustment of status, they were also entitled to $25,626.40 in attorneys fees and $936.66 in costs as prevailing parties.

For a long time now, the courts have been ruling that the USCIS cannot simply put off deciding applications for adjustment of status for years simply because security checks are sitting in file cabinets with no one working on them.  Yet, the government has continually brought the same arguments in defending law suits:  That they cannot be forced to adjudicate the applications and that the wait is reasonable.   See my prior blog on these cases. 

Well, it appears that the Courts are finally getting tired of the government’s losing arguments.  After examining the USCIS’ arguments and litigation actions, the Shirmohamadali Court found that the Agency’s “conduct did not have a reasonable basis in fact or in law, and the government’s litigation position was not justified to a degree that could satisfy a reasonable person.”    

I, for one, am glad that the courts can still help achieve some measure of justice for immigrants.   

The U.S. Consulate in Ciudad Juarez  (”the Consulate”) has changed its policy in a way that will prevent many young people from coming to the United States.  Indeed, the Consulate, the largest and busiest immigrant visa post in the world, will now apply a permanent bar to U.S. admission (refered to as “the Permanent Bar”) to all minors who:

• Previously accrued unlawful presence in the U.S. in the aggregate of more than one year;
• Who later entered the U.S. without inspection; or
• Attempted to enter the U.S. without inspection.

The term ”unlawful presence” is defined as being present in the U.S. after the expiration of the period of authorized stay or present in the U.S. without being admitted or paroled.  Unlawful presence will begin to accrue if a person unlawfully enters the U.S. without documentation, remains in the U.S. after the expiration of the person’s Form I-94, or remains in the U.S. after the government issues a decision noting the person is out of status.  

In adopting its new policy regarding minors, the Consulate had to deal with some confusing statutes that deal with the Permanent Bar, mentioned above, and the Three and Ten Year Bars.  The Three and Ten Year Bars work as follows:

1. Three Year Bar: If a person is unlawfully present in the United States for more than 180 days but less than 1 year, that person is barred from reentering the U.S. for 3 years; and
2. Ten Year Bar: If a person is unlawfully present in the United States for 1 year or more, that person is barred from reentering the U.S. for 10 years.

 There is an exception to the Three and Ten Year Bars for minors.  The applicable statute provides:  “No period of time in which an alien is under 18 years of age shall be taken into account in determining the period of unlawful presence in the United States . . . .”  INA Section 212(a)(9)(B)(iii)(I). 

 Until recently, the Consulate applied this exception for minors not only to the Three and Ten Year Bar statute, but also to the Permanent Bar statute.  Unfortunately, the Permanent Bar statute contains no specific language granting minors an exception to the rule, which has led to confusion over the rule. 

The Consulate’s changed policy is truely unfortunate.  The former INS (now called the United States Citizenship and Immigration Services) had previously issued policy guidance in 1997 stating that the exception for minors did not apply to the Permanent Bar statute, but the Consulate exercised its own authority to apply the exception over the years until recently.

It is really ashame that the Permanent Bar statute will be applied in a manner that severly penalizes children.  Children have little choice but to follow the directions of their parents; thus, it is a very harsh law that imposes a permanent bar to U.S. admission based on actions children cannot avoid taking. 

The immigration attorneys at Smith & Garg advocate for the rights of immigrants.  If you or someone you know needs immigration assistance, please contact us.  

I think parents sometimes get too much credit for a good child.  Sure, parents play a huge role in the development of their childrens’ lives, but that is our job as parents, and we should relish the privilege.  In this blog, I hope you will endulge a proud father a little while I sing praises about my daughter, Ivanka, who deserves credit for her accomplishments.

To begin, I think I was very lucky to be blessed with such a wonderful child.  Ivanka has made her mom and dad very proud.  She is respectful, hard working, and modest.  All at ten years of age.  And at this time of year, we also get the added treat of receiving her report card.  This is what her teacher had to say on the report:  “Ivanka is a remarkably diligent student with wonderful self-control, and her outstanding grades reflect this.”  Her marks were all A+ or E (excellent), and her tests scores ranged from 98% to 103%.    I think that in some of her subjects, she did not miss a test question all year long.  Her success can be attributed to her maturity, hard work, and focus on the important things.  I guess it bears repeating, I am very fortunate to have such a great daughter.  I think my wife and I will have to find some special ways this week to let her know how proud we are of her. 

As I will explain, in light of a new court decision, employers should proceed cautiously before terminating employees who are the subject of a mismatch of information in certain records, such as the information found in “no match letters.”   

In an earlier article, I wrote about the Bush Administration’s attempt to implement regulations concering “no match” letters.   No match letters are letters sent by the Social Security Administration (”SSA”) notifying an employer of a mismatch of information in government databases concerning the employee’s name and social security number. The regulation calls on employers receiving no match letters to undergo rather complex and involved steps under a safe-harbor procedure to avoid liability in the event the government determines any of its employees are working without permission. 

One result of the regulation, if implemented, would be that if an employer did not follow the safe-harbor provisions after receipt of a no match letter, the government could determine that the employer had “constructive knowledge” of the worker’s lack of work authorization.  Such employers could be heavily fined and criminal penalties could, in some cases, be imposed.  A California District Court has preliminarily enjoined the government from enforcing the regulations.  See AFL v. Chertoff, No. 07-4472, __ F. Supp. 2d __, 2007 WL 2972952, at 15 (N.D. Cal. Oct. 10, 2007), and a final decision on the regulations could be issued in the near future.

In Aramark Facility Services v. Service Employees International Union, Local 1877, AFL CIO CLC (”Aramark”),  the United States Court of Appeals for the Ninth Circuit specifically found that a no match letter did not demonstrate that an employer had ”constructive knowledge” of unauthorized employment or any immigration violation.  The employer, Aramark Facility Services, received no match letters concerning 48 employees.  It instructed these employees to, within three days, obtain new Social Security cards or verification from the Social Security Administration that new cards were being processed.  Thirty-three of these employees failed to timely comply with the employer’s request and were terminated. 

The Court found that the employer had wrongfully terminated the thirty-three employees and ordered the employees reinstated with back pay.  The Court found that the no match letter did not, by itself, provide constructive knowledge of an immigration violation, because there are many possible explanations for the mismatch information, not involving a person’s status, such as typographical errors, name changes, compound last names prevalent in immigrant communities, and inaccurate or incomplete employer records. 

In addition, the Court rejected the employer’s argument that the workers’ failure to obtain the requested Social Security information placed it on notice that the workers were illegal, and that by continuing to employ these workers under the circumstances would cause it to violate the immigration laws.  The Court found that the employees’ lack of response to a three day notice for Social Security documentation did not indicate that they were unauthorized to work or illegally in the U.S. 

The lesson to be learned from the Court’s decision is that employers should carefully consider how to respond to information about an employee’s records.   I know of some employers who are terminating employees based on inconsistent information regarding work authorization.  Many may be taking a path leading to liability in a law suit.  Aramark is certainly paying a high price for the path it took.   

The Long Beach Attorneys at Smith & Garg are highly experienced in immigration and business issues.   We would be glad to help your company develop an effective strategy for dealing with immigration issues, including those concerning work eligibility.