Immigration Compliance and Visa Processing Under the Trump Administration

By Jon Velie

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• 24 years of experience Immigration Law, Corporate Law, and Litigation.

• Testified in court as expert on immigration matters. • Spoke at US Congressional and agency panels, companies and

Universities and professional and legal associations. • Briefed three cases to the U.S. Supreme Court • Featured in numerous publications including the New York Times,

LA Times, Washington Post, Chicago Tribune, Le Monde, and London Times, and featured on a segment of CBS 60 Minutes II.

• #1 Best Selling Author • Represents many world class individuals and companies. • Founded Online Visas, the revolutionary Immigration platform

Today’s Presenter Jon Velie, Attorney at Law

AGENDA Section I: Enforcement and Compliance

 Recent and Historic ICE enforcement trends  Be prepared for an ICE Raid

• What to do if they raid • Employee’s rights • After a raid

 Constructive and actual knowledge  Rapid Response Team  Creating a compliant workplace

• I-9 compliance • Dealing with No-match letters • Safe-harbor procedures • Penalties for immigration violations

Who is I.C.E. ? • The United States Immigration and Customs Enforcement (ICE) is the

investigative arm of the Department of Homeland Security (DHS). • Formed in the wake of 9/11 as part of a massive reorganization

campaign designed to protect the country from future attacks. • ICE agents have a wide variety of duties under the law, and they can be

found serving in an assortment of locations around the world. • One aspect of its practice is to audit U.S. employers, and their

employees, through I-9 audits and other investigative means such as informants and wiretaps.

A Brief History

http://www.wisegeek.com/what-does-the-department-of-homeland-security-do.htm

 ICE’s worksite enforcement activity has recently surged under the Trump presidency.

 Immigration related detainments have been reported across the United States.

A Brief History

The Trump Administration has expanded its raids to include not only those with criminal records, but also individuals who are merely undocumented. –USA Today, “Trump immigration raids show greater focus on non-criminals” 2/16/17

A Brief History

In its most recent surge of enforcement activity, ICE officers arrested more than 680 individuals across the nation during the second week of February 2017 alone. –Statement by DHS Secretary John Kelly 02/13/2017

A Brief History

A Brief History

Be Prepared for an ICE Raid

 Advise employees indirectly, through conversations with Attorneys or documents created by Attorney that inform individuals of their rights, including “know your rights” cards in Spanish and English with Attorney’s contact info.

 Note: Do not pass these cards out through your company or employees, but utilize other organizations to distribute them.

Be Prepared for an ICE Raid

 Examine Warrant and Fax or E-mail to your Attorney • Do not allow access without a warrant. • Is it signed by the proper court? • Is it being served within the permitted timeframe? • Note the scope of the warrant, area to be searched, and

items to be seized. • Immediately contact your attorney.

Be Prepared for an ICE Raid

Monitor the search process • Obtain the name of the supervising ICE agent and U.S.

Attorney assigned to the case • Assign company representatives to silently follow each agent

around the facility and take notes or record that agent’s actions (without interfering).

• If agents want access to locked facilities that are listed in the warrant, unlock them—otherwise agents will forcibly gain entry.

• Take no actions that could be construed as inducing perjury, such as telling people to provide false information or documents.

What to do if ICE raids your business

What are Employees’ rights?

 Employees have the right to remain silent, and should present the “know your rights” card and exercise their right to speak to their attorney  Employees not listed on the warrant may decline a mobile

finger print scan.  Employees should not sign anything without conferring with

an attorney.  Employees should not carry documentation from another

country because it can be used as evidence against them.

After the ICE Raid

Once employees are detained, whether from the work place or otherwise, a conflict of interest then arises. You should arrange for counsel to represent them and pay the bail as soon as possible.

• The longer an employee remains detained, the greater the likelihood that the employee will be intimidated in order to provide adverse information against a company in exchange for a work permit.

After the ICE Raid

 ICE may issue the employer a “DO NOT REHIRE” list. The employer may not continue to employ any worker found on this list.  ICE may continue to investigate a company for months or

years after a raid to see if: • Banned employees are returning using different identities • Banned employees are placed in different worksites • Banned employees are assigned to a graveyard shift in order to

avoid detection

After the ICE Raid

After the ICE Raid

 Undercover ICE agents may pose as prospective employees to see if they are hired after admitting they lack work authorization  ICE will cooperate and collaborate with various government

agencies such as the Internal Revenue Service and the Social Security Administration  ICE and the U.S. Attorney will thoroughly review the items seized

during the raid to determine the extent of evidence that exists against a company

After the ICE Raid

 Company should secure separate counsel for targeted employees and the Company  Attorney can retain a private investigator to interview all potential

witnesses, including apprehended workers.  Attorney will obtain copies of all seized documents in order to

determine if there is incriminating data  Where a raid occurs at one worksite, the Attorney can

immediately coordinate an immigration audit of other company worksites.

After the ICE Raid

Attorney can develop for Company a corporate immigration compliance program, which will later benefit the Company and help in negotiations with the U.S. Attorney and ICE.

• Make every effort to recruit a legal workforce to replace those detained in the raid.

After the evidence has been examined and the private investigators have concluded, Attorney and Company will meet to determine whether to negotiate a plea pre-indictment or to wait and see the evidence against the company.

After the ICE Raid

Constructive Knowledge and Actual Knowledge

Pursuant to 8 CFR § 274a. 1(l)(1), the term “knowing” includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition…also know as constructive knowledge.

Constructive knowledge may include, but is not limited to, situations where an employer:  1. Fails to complete or improperly completes the I–9;(8 CFR §

274a. 1(l)(1)(i))

 2. Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; (8 CFR § 274a. 1(l)(1)(ii)

 3. Acts 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 CFR § 274a. 1(l)(1)(iii).

Constructive Knowledge

 Knowledge that an e