On the Precipice of Comprehensive Immigration Reform: What Employers Need To Know About The Changing Immigration

Landscape By Jacob M. Monty

• Introduction

• New Form I-9

• ICE Enforcement in 2013

• Office of Special Counsel (“DOJ OSC”)

• Recent Developments

• DACA• Stateside Waivers• Policy Practice Alerts for Employers

• New Identity Scenarios• Services Letters and Reference Letters

• New Driver’s License Laws • Targeting Immigrants

• Notarios • Unions• Plaintiff’s Lawyers• Department of Labor

• Questions

Agenda

Are You Todd Davis?

No, I’m Todd Davis, but...

Fraudulent Documents That Passed E-Verify

Introduction: Immigration Laws

Applicable Immigration Laws:• Immigration and Nationality Act (“INA”)

• Immigration Reform and Control Act of 1986 (“IRCA”)• Established Form I-9 requirements;• Established civil and criminal penalties; and• Established anti-discrimination provisions.

• Border Security, Economic Opportunity, and Immigration Modernization Act,

• A pathway to citizenship: • Creation of a new “registered provisional immigrant” (RPI) status

• More high-skill immigration: • Increases the number of H-1B visas companies can offer.

• New “Point System” for Visas: • Between 120,000 and 250,000 visas would be allocated each year based on

the point system.

• More low-skill immigration:• New “W” Nonimmigrant Visas for non-agricultural low-wage workers.• “Blue Card” for Agricultural Workers

• Border security: Doubles the presence of border patrol agents from 20,000 to 40,000. It also adds 700 miles of border fencing and all employers would have to use E-Verify.

Introduction: Immigration Reform

Senate Bill 744 passed on June 27, 2013

New Form I-9

The new form I-9 is two pages.

• On September 26, 2013, the manager of El Mezcal Mexican Restaurant in Ottawa, Kan., was charged with four counts of harboring illegal aliens for financial gain.

• ICE discovered the restaurant did not have I-9 forms for 14 employees. If convicted, the manager faces up to 10 years in federal prison and a fine up to $250,000.

Notable ICE Enforcements in 2013 Cont’d

• March 12, 2013, GPX/GXP USA (GPX), a seismic surveying company based in Sealy, Texas, pleaded guilty to harboring charges.

• GPX agreed to forfeit $250,000 cash and pay a $25,000 fine.

• Supervisor faces a six (6) months in prison and a $5,000 fine.

Notable ICE Enforcements in 2013 Cont’d

• August 23, 2013, Houston, TX., the manager of Hallmark Industrial Services Inc. (Hallmark), pleaded guilty to harboring illegal aliens for commercial advantage and financial gain.

• Hallmark was contracted to clean up a ruptured pipeline that resulted in an oil spill in Kalamazoo. Hallmark and its manager face up to 10 years in federal prison and a $250,000 fine.

Notable ICE Enforcements in 2013 Cont’d

• The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA)

Office of Special Counsel

OSC 2012 Statistics

Citizenship or immigration status

Employers must not discriminate with respect to hiring, firing or recruitment or referral for a fee against individuals because they are or are not U.S. citizens or because of their immigration status or type of employment authorization.

National origin

Employers must not discriminate with respect to hiring, firing or recruitment or referral for a fee against individuals based on their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign“.

Document abuse during the I-9 Process

• Employers must not request more or different documents than are required to verify employment authorization and identity.

• Reject documents that reasonably appear to be genuine and relate to the employee.

• Specify certain documents over others based on an employee’s citizenship or immigration status, or national origin.

Retaliation

Employers must not intimidate, threaten, coerce, or retaliate against a person who:

• Files a charge with Office of Special Counsel (OSC) or Equal Employment Opportunity Commission (EEOC).

• Contests action that may constitute discrimination

Types of Employment Discrimination Covered by the Office of Special Counsel (OSC)

2013 OSC Notable Enforcements

• 05/23/2013 Houston, Texas – ISS Facilities Offices in Dallas and Houston required non-citizens to present specific documents to establish their identity and work-authority while not making similar requests on U.S. citizens.

• ISS agreed to pay $49,800 to compensate victims.

2013 OSC Notable Enforcements Cont’d

• 06/27/2013 Florida – Macy’s engaged in unfair documentary practices against work-authorized immigrant employees during the employment eligibility reverification process.

• Employees suffered economic harm through lost work or seniority.

• Macy’s agreed to pay $175,000 in civil penalties and $100,000 back pay fund.

• Deferred Action for Childhood Arrivals

• Stateside Waivers

• New Driver’s License Laws

Recent Developments (De Facto Immigration Reform)

• On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several key guidelines may request consideration of deferred action for a period of two years, subject to renewal, and would then be eligible for work authorization.

• Eligibility Requirements• Were under the age of 31 as of June 15, 2012;• Came to the United States before reaching your 16th birthday;• Continuous residence in the United States since June 15, 2007, up to the present time; • Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred

action with USCIS;• Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;• Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education

development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and• Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat

to national security or public safety.

Deferred Action for Childhood Arrivals (DACA)

• As of June 30, 2013 over 500,000 people have applied for DACA.

• 72 percent have been approved

• 1 percent have been denied.

• The majority of the remaining applications are still under review.

Deferred Action for Childhood Arrivals (DACA)

Statistics from USCIS. Chart created by The Brookings Institute

• Up to 1.7 million of the 4.4 million unauthorized immigrants ages 30 and under could potentially qualify for DACA.

• As of June of 2013 approximately 1.2 million people eligible for DACA have not yet applied.

DACA Cont’d

Statistics and graph from Pew Research Center

• On January 3, 2013, USCIS published its final rule on provisional unlawful presence waivers for certain immediate family members of U.S. citizens. The rule went into effect and USCIS began accepting applications for provisional unlawful presence waivers on March 4, 2013.

• The provisional unlawful presence waiver allows individuals, who only need a waiver of inadmissibility for unlawful presence, to apply for a waiver in the United States and before they depart for their immigrant visa interviews at a U.S. embassy or consulate abroad.

• Before March 4, 2013, applicants had to leave the U.S. before applying for a waiver of inadmissibility.

Stateside Waivers

Stateside Waivers cont’d

SCENARIO: Employee “Carlos” changed his name to “Juan” and acquired work authorization after originally producing fraudulent I-9 documents

What can the company do?(a) Fire him because he lied about prior documentation or(b) Keep the employee now that he has legal authorization

No duty to fire-Standard policy that provides company full discretion recommended

What to do with New Identity Scenarios / Policy Assessment

1. Make sure you do due diligence in situations where an employee presents you with new and “valid” identification

2. If work authorization has changed and been verified, the employer should complete Section 3 of the previous I-9 noting any explanation including an explanation for the name change.

3. Prepare a new I-9 then keep the old I-9 with the new I-9

• Helps provide a good-faith defense for the Company

What to do with New Identity Scenarios cont.

• Policy Practice Service Letters and Reference Letters

Policy Practice Alerts for Employers

• Be aware that some states now offer driver’s licenses to undocumented immigrants

• New California law gives undocumented immigrants driver's licenses• Assembly Bill 60, requires the California

Department of Motor Vehicle issue driver's licenses to undocumented immigrants who can prove their identities, have established California residency and pass driving exams. The law goes into effect no later than January 1, 2015.

New Driver’s License Laws

• A Notario in Latin America is considered an attorney or a public official with quasi-judicial power

• In the U.S., the notario or notary is simply a person legally empowered to witness and certify documents, affidavits and depositions

• They are not recognized as practitioners of law

• Many notarios or “immigration consultants” come to the U.S. and fraudulently advertise to their cultural community that they can assist them with their immigration problems

Targeting Immigrants

August 30, 2013

–Texas General’s Office Shuts Down Unauthorized Austin-Based Immigration

Consultant. State secures judgment against Cristo Vive; defendants assessed more

than $500,000 in fines and restitution

April 22, 2013

–Texas Attorney General Shuts Down Unlawful Legal Services Provider. Just for

People, Inc., directors prohibited from providing unauthorized legal services; must

establish restitution pool for affected clients

Recent Notario Scams

• Inform the workforce that notarios are not attorneys in the U.S.

• A law degree from another country is not valid in most states and admission to a state’s bar is required

• Be suspicious of a notario that says his or her work is “100% guaranteed”

How to Explain Notario v. Attorney

Unions Targeting Immigrants

• Unions are currently taking advantage of the uptick in immigration and the confusion with immigration reform

• Unions are offering immigration assistance as part of membership with the union

Unions Tactics

• Unions have done a complete turn-around because they have seen how deep the immigrant labor pool runs and, consequently, how accepting immigrant workers increases membership dues and collective bargaining power

Union Tactics cont’d

• Promise of permanent residency• Lottery for green cards

• Membership perks• Free consultations• Free review of applications• Discounted services

• Employer is a trusted source for immigration information

• Communication is vital• Maintain an open door policy that encourages employees to

have a voice

• Establish and maintain competitive pay practices• Acknowledge and value good work

• Facilitate the path to finding reputable immigration services• Provide employees with a list of reputable attorneys

Strategies

Plaintiff’s Lawyers Targeting Immigrants

Overtime Wage Claim for Illegal and Undocumented Workers

The overtime wage claim attorneys at the Amaro Law Firm help undocumented workers, sometimes referred to as illegal workers, to obtain the overtime wages they are owed.

DOL’s “We Can Help” Public

Service Announcement

Contact Monty & Ramirez for an external audit or NOI representation at (281)493-5529 or jmonty@montyramirezlaw.com

Monty & Ramirez Contact Information

Questions?

• ABOUT US. Established in 1998, Monty & Ramirez LLP is the largest Hispanic-owned labor, employment and immigration law firm in the Southwest. The Firm is passionate about representing the interests of companies with large Hispanic workforces. The firm offers a range of corporate legal services to Fortune 500, publicly-traded companies, major industry associations and governmental agencies (notably serving as Immigration Counsel for the agencies). The Firm represents employers in investigations and audits conducted by the National Labor Relations Board, Department of Labor, Bureau of Citizenship and Immigration Service, Occupational Safety and Health Administration and Equal Employment Opportunity Commission.

• DISCLAIMER. Please note that this presentation is for informational purposes only and provides general information concerning employment and immigration law to help you identify when you may need additional advice. It is not an exhaustive treatment of the statutes, case law or regulations that are involved with the subject. Please recognize that the law is developing rapidly in this area and you will want to obtain current legal advice on your specific situation before taking action. Employment and Immigration law liabilities are often highly dependent on the particular facts and circumstances of the individual case or situation. As such, employers should seek the advice of counsel prior to making their determinations. Monty Partners, LLP is available to answer any employment or immigration related issue(s) with Your Company.

COPYRIGHT MATERIALS• This presentation was prepared for the sole use of Monty & Ramirez LLP or authorized use of its clients. Any unauthorized use is an infringement

of attorney work product, trade secrets, copyright law, and any other violation of law. Accordingly, this presentation is protected by US and International copyright laws. Reproduction, distribution, display and use of the presentation without permission of the speaker is prohibited. Any unauthorized use of this presentation is strictly prohibited and Monty & Ramirez LLP reserves all rights to pursue legal action for any unauthorized use of it.

Disclaimer