Changing of the Guard - Trump Presidency

Setting politics and personalities aside; the election is over and we will soon have new management.  Understandably, change can be difficult for many people due to the uncertainty of what the benefits, or consequences, of what that change may bring.  We must all remember that change is inevitable.

There is a great deal of concern from those undocumented people, who are now afraid that they will be deported.

Although I have to admit that their fears are somewhat justified; it seems nearly impossible for the new administration to overcome the legal hurdles of processing, and deporting millions of people.  This is compounded because previous administrations seem to have not only “tolerated” illegal immigration, but that they have supported and even given rights to these people – which is why mass deportations seem highly unlikely.

As Non-Immigrant Labor is a specific concern to us, as well as our clients; it seems important that we try to keep you up to date, and refrain from editorializing.

Our best advice is:

1.  Follow the rules of law, especially for the programs you are using.  

2.  Stay on top of your documentation and use due diligence when reviewing new hire documents – E-Verify is a great tool!

Now begins the speculation, but some very good points are brought up.

Forbes - What Trump's Presidency Means for Illegal immigrants & Immigration to the US

Politifact - Trump's Immigration Plan

Polizette - Immigration Action Items for Trump’s First 100 Days

Wall Street Journal - After Tough Talk on Immigration, Donald Trump Gets a Policy Lever

Fortune - Mass Deportations and a Wall: Will That Really Be Part a Trump Presidency?

D. Conley

Food For Thought - HR 3 - Hiring Foreign Workers

Food For Thought – HR 3

Hiring Foreign Workers

In the previous two installations, we addressed the need for fairness to all applicants, and the need to use our “Due Diligence” and looking at the documents that were presented to us by our new hires.  The importance of this is illustrated in the following from Title 8 USC 1324a, para (3) as shown below:

" U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part VIII › § 1324a, Paragraph (3)Defense

"A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral."

After 1986, all US companies are required to verify that all new hires are authorized to work in the United States – again; the I-9 Form and the list of acceptable/approved documents.

There are other concerns facing companies and hiring managers.  Due to the litigious society we live in, you have to be careful when asking questions.  If not phrased properly, or if you ask the wrong things, you could very well face a discrimination suit. 

 For example:  you cannot ask about their birthplace or national origin; you cannot ask what religion they practice, or what religious holidays they observe, and you cannot ask how old they are.  These are just a few examples of questions NOT to ask.

In another NOLO.com article by Deborah Dyson, she brings up a few questions that every hiring manager should know.  “Do they have papers?  What if they don’t?  Can you ask if they have papers?” 

First Things You Need to Know About Hiring Foreign Workers

These are some of the points addressed, and are good reading for any business owner or hiring manager.

D. Conley

Food For Thought - C01 - Caught

Food for Thought - C01 – Caught!

It is illegal to hire anyone not authorized to work in the U.S. 

Laws work well when everyone obeys them, but we all know we don’t live in a perfect world.

In the following, you will see what happens when people decide the law is something that applies to everyone else; just not them.   Caught!

All articles are direct links to News Reports on the reporting agency’s website.
(All suspects are considered innocent until proven guilty by a court of law)

  

Company President Receives 10 Month Sentence

Over $200,000 in Fines and Workers Deported after Kentucky Business Raided

The following two stories concern a husband and wife team:

Hotel Owner Sentenced for Hiring Undocumented Workers - Illegal Profit Taking  (wife)

Employer Sent to Prison for Hiring Workers Illegally in US  (husband)

Restaurant and Consultant Facing Multiple Charges Stemming from Use of Undocumented Workers

Inspection of Peregrine Falcon Nest Leads to Discovery of Undocumented Workers and Attempted Cover-Up

D. Conley

Food for Thought – HR 2 Document Examination

Food for Thought – HR 2

Document Examination

In the previous Post, Food for Thought – HR, we addressed the importance of non-discrimination for new hires as well as their paperwork, and the use of  “due diligence” and “good faith” when addressing documentation being presented by new hires.

Unless you’re a forensic specialist, no one expects you to be an expert, but what should you look for when examining the documents in front of you?

Please try to keep in mind that sometimes not having a specific document, or having a document returned, it doesn’t necessarily mean the person is attempting fraud.  Sometimes, especially with documents; life happens.  Fires, floods, storms, moving...all these things happen and sometimes documents get lost, and some are more easily replaced than others.

One thing to remember is, a missing or incorrect document may be reason to raise an eyebrow, but not necessarily an alarm.

An article, written by the staff of verifyi9.com, addresses the employers’ responsibility for some “common sense” when looking at documents, and shows some examples of what to look for.

Detecting Fake Documentation

More on this subject to come in future posts.

D. Conley

Food For Thought - HR - New Hire Documentation

Food for Thought – HR

New Hire Documentation

As we all know, when hiring new personnel; there are forms to be filled out, and copies of different forms of valid identification are required.

Enter the I-9 Form, which is easy enough to understand and fill out; it tells you what forms of identification you can use.  There is even a small box warning against discrimination; even against the forms that are being presented for identification by the worker.

BUT…what if the forms being given to you aren’t real?  We are all too familiar with the forms we see on a daily basis, and if we’re paying attention, deviations from what is considered to be the “norm” can raise an eyebrow.

Photo Courtesy SMU

It’s when we have the unique or seldom seen item that makes us take a moment to really take a look at it.  Different states have different driver’s license and identification cards that have information in different places.  There are Alien Residence cards, work visas, and “Green” cards that haven’t been green in years.  As I rarely see many of these, unless it was obviously made and sold in the Magic Kingdom, I’m going to have a hard time being able to accurately discern whether or not the document is real.

Here is the dilemma that business owners and hiring managers face.  It is not only wrong to discriminate against a qualifying candidate for a job; it’s illegal, and it can cost a business not only huge amounts of what would have been profit, it also can hurt the company “socially”, as well.

So, you don’t want to turn someone away who is legitimately and legally qualified to work in the US, but you don’t want to hire an illegal worker, either.

Fortunately, there is some help in what is called “Due Diligence”, or “Good Faith”, as stated in an article from NOLO.com by Nicole Kersey, she specifically addresses what employers need to do to help protect themselves and what to do if the documents being provided look suspicious.  What to do if the I-9 Documents Look Suspicious

More on this subject to come in future posts.

D.Conley

SUMMARY OF THE REGISTERED PROVISIONAL IMMIGRANT STATUS portion of the "Border Security, Economic Opportunity and Immigration Modernization Act" - Sections 2101 and 2012

THIS IS A SUMMARY OF THE REGISTERED PROVISIONAL IMMIGRANT STATUS*  portion of the "Border Security, Economic Opportunity and Immigration Modernization Act".  

Please keep in mind - this is just a PROPOSED bill in the Senate and is by no means LAW this is simply the first stride of what will likely be a grueling marathon.  This summary is to help any that would care to understand this section.  To read the proposed bill in it's entirety please click here and for this specific summary go to sections 2101 and 2102 starting on page 59 and ending on page 110.

For now, I am simply providing a concise summary to help you understand and keeping my opinions out of it.  Once all section summaries are complete, I will provide my complete unadulterated opinion.  I will not be publishing ALL section summaries - but feel in order to formulate a complete opinion I should read each. 

ELIGIBILITY REQUIREMENTS.—

1.      Provide evidence,  that alien meets the following requirements:

b.    Be physically present in the United States on the date on which the alien submits an application for registered provisional immigrant status;

c.     Have been physically present in the United States on or before December 31, 2011.

d.    Have maintained continuous physical presence in the United States from December 31, 2011, until the date on which granted status as a registered provisional immigrant.

                             i.    BREAK IN PHYSICAL PRESENCE.—  IN GENERAL.— an alien who is absent 6 months from the United States without authorization after the date of the enactment of this BILL does not meet the continuous physical presence requirement.  Exceptions to the break exist if said absences are brief, casual, and innocent.

2.      Submits a completed application before the end of the period set forth in subsection [not defined yet].  – Will be 1 year period of registration once published in Federal Registry – with a possible extension to 18 months.

3.      Fees and Penalties

a.    Processing fee to the Department of Homeland Security in an amount determined DHS [Unknown at this time].

b.    PENALTY.—MOST aliens who are 21 years of age or older and are filing an application will pay a $1,000 penalty to DHS.  May be considerations for families filing together.

4.      In general have a clean background check.

                Background ineligabilities would include—

a.     A felony conviction (other than one in which an essential element was the alien’s immigration status or a violation of this Act).

b.   3 or more misdemeanor offenses if the alien was convicted on different dates for each of the 3 offenses. [Does not include traffic].

c.    Any offense under foreign law, except for a purely political offense, which, if the offense had been committed in the United States, would render the alien inadmissible.

d.    Unlawful voting

e.    The Secretary (DHS)  knows or has reasonable grounds to believe, is engaged in or is likely to engage in any terrorist activity

5.    DEPENDENT SPOUSE AND CHILDREN.—the spouse or child of a registered provisional immigrant may also apply if

a.    Is physically present in the United States— on the date on which the registered provisional immigrant is granted such status; AND

b.    before December 30, 2012 AND

c.    meets all of the eligibility requirements above.

6.    PAYMENT all Federal income tax liabilities as assessed in accordance with section 6203 of the Internal Revenue Code of 1986.  Submission of Proof required.

7.    Other Grounds for INELIGABILTY. 

a.     Was, on the date Act was introduced in the Senate— an alien lawfully admitted for permanent residence

b.    An alien admitted as a refugee under section 207 or granted asylum under section 208

c.   An alien who, according to the records of the Secretary or the Secretary of State, is lawfully present  in the United States in any nonimmigrant status on the date Act was introduced in the Senate, despite any unauthorized employment or other violation of nonimmigrant status.

The initial period of authorized admission for a registered provisional immigrant— will be 6 years unless revoked for cause - may be extended for additional 6-year terms if:

1.        the alien remains eligible for registered provisional immigrant status [see above];

2.        the alien meets the employment or education requirements

a.    was regularly employed throughout the period of admission as a registered provisional immigrant, allowing for brief periods lasting not more than 60  days; and

b.    is not likely to become a public charge (as determined under section 212(a)(4)); or

c.    is able to demonstrate average income or resources that are not less than 100 percent of the Federal poverty level throughout the period of admission as a registered provisional immigrant.

3.      CLARIFICATION OF STATUS.—An alien granted registered provisional immigrant status—

a.    is lawfully admitted to the United States; and

b.    may not be classified as a nonimmigrant or as an alien who has been lawfully admitted for permanent residence.

4.      Provisional Immigrants are INELIGIBILITY FOR PUBLIC BENEFITS.— An alien who has been granted registered provisional immigrant status under this section is not eligible for any Federal means-tested public benefit (as such term is defined in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)).

ADJUSTMENT OF STATUS OF REGISTERED PROVISIONAL IMMIGRANTS.

Registered provisional immigrant may adjust the status to that of an alien lawfully admitted for permanent residence if the registered provisional immigrant satisfies the eligibility requirements below:

ELIGIBILITY REQUIREMENTS.—

1.        The alien was granted registered provisional immigrant and remains eligible for such status.

2.        Has maintained a CONTINUOUS PHYSICAL PRESENCE in the U.S.

3.        PAYMENT OF all Federal TAX liabilities.

4.        Met the EMPLOYMENT OR EDUCATION REQUIREMENT.—

a.    was regularly employed throughout the period of admission as a registered provisional immigrant, allowing for brief periods lasting not more than 60 days; and

b.    is not likely to become a public charge (as determined under section 212(a)(4)); or

c.   can demonstrate average income or resources that are not less than 125 percent of the Federal poverty level throughout the period of admission as a registered provisional immigrant.

d.    EDUCATION PERMITTED.— to satisfy this requirement

5.      ENGLISH SKILLS.— as set forth by INA ACT 312 or is satisfactorily pursuing a course of study to achieve an understanding of English and knowledge and understanding of the history and Government of the United States, as described in section 312(a).

6.      BACK OF THE LINE.—The status of a registered provisional immigrant may not be adjusted to that of an alien lawfully admitted for permanent residency until those aliens that filed for permanent residency prior to the signing of this act have received their adjustment of status.

----------------

END NOTE

* Border Security, Economic Opportunity, and Immigration Modernization Act

Section 3 Effective Date Trigger

(c)TRIGGERS.—

(1) PROCESSING OF APPLICATIONS FOR REGISTERED PROVISIONAL IMMIGRANT STATUS.—Not earlier than the date upon which the Secretary has submitted to Congress the Notice of Commencement of implementation of the Comprehensive Southern Border Security Strategy and the Southern Border Fencing Strategy under section 5 of this Act, the Secretary may commence processing applications for registered provisional immigrant status pursuant to section 245B of the Immigration and Nationality Act, as added by section 2101 of this Act.

(2) ADJUSTMENT OF STATUS OF REGISTERED PROVISIONAL IMMIGRANTS.—

(A) IN GENERAL.—Except as provided in 8 subparagraph (B), the Secretary may not adjust the status of aliens who have been granted registered provisional immigrant status, except for aliens granted agriculture card status under section 2201 of this Act or described in section 245D(b) of the Immigration and Nationality Act, until the Secretary, after consultation with the Comptroller General of the United States, submits to the President and Congress a written certification that—

(i) the Comprehensive Southern Border Security Strategy has been submitted to Congress and is substantially deployed and substantially operational;

(ii) the Southern Border Fencing Strategy has been submitted to Congress, implemented, and is substantially completed;

(iii) the Secretary has implemented a mandatory employment verification system

to be used by all employers to prevent unauthorized workers from obtaining employment in the United States; and

(iv) the Secretary is using an electronic exit system at air and sea ports of entry that operates by collecting machine readable visa or passport information from air and vessel carriers.

 (B) EXCEPTION.—The Secretary shall permit registered provisional immigrants to apply for an adjustment to lawful permanent resident status if—

(i)

(I) litigation or a force majeure has prevented one or more of the conditions described in clauses (i) through (iv) of subparagraph (A) from being implemented; or

(II) the implementation of subparagraph (A) has been held unconstitutional  by the Supreme Court of the United States or the Supreme Court has granted certiorari to the litigation on the constitutionality of implementation of subparagraph (A); and

(ii) 10 years have elapsed since the date of the enactment of this Act.

Relief For Youth Brought to the United States Illegally By Their Parents.

Relief For Youth Brought to the United States Illegally By Their Parents.

The White House announces “DEFERRED ACTION” for young immigrants that entered the United States illegally, under the age of 16 and who meet certain other criteria.  The Administration cited the youth’s unlikely public safety threat.  Many have, and will continue to argue that the actual purpose of this action is the upcoming November 2012 election.   I am not going to get into the politics of the executive order – only provide information as it becomes available.

So many have contacted me over the past 12 years asking about this issue and each time all I can do is shake my head and let them know about the Dream Act.  Well now there appears to be a 2 year fix for children, brought into the country by their parents.  Many of these children (now adults) are unable to fathom being anything but an American; yet they live under the very constant and real threat of deportation (to a country they do not know).   

So, here we go…. --

What is DEFERRED ACTION? 

A Presidential Executive Order – granting “discretionary determinations to defer removal action”.  In English please; on a case by case basis, based on evidence presented, an individual may be allowed to stay in the United States, not quite in a legal status – but not really considered illegal either.  This DEFERRED ACTION does not grant “lawful status”.    If an individual is granted deferred status they may apply and receive employment authorization for the period of the deferred status if they can demonstrate “an economic necessity for employment” [watching for details on how to demonstrate this]. 

Who is eligible?

•  Individuals brought to this country by their parents under the age of 16.
• Resided in the U.S. for at least five years preceding 06/15/2012 AND be present in the U.S. on 06/15/2012. 
• Currently be in school, have graduated from high school, obtained a GED or are honorably discharged from any branch of the U.S. Service. 
• Have not been convicted of a felony offense, a significant misdemeanor, and multiple misdemeanors or otherwise pose a security threat to the U.S.  [Background checks will be conducted]
• Not currently be over the age of 30.

What is the petition process?

It is not yet been released.  Will be watching and provide once it is made available. 

Is this a path to citizenship or permanent residency (green card)?

No.  Congress must, through the legislative process, pass a law for this to occur.

Is this DEFERRED ACTION permanent?

No – it is for 2 years, at the end of 2 years application would need to be made for a renewal of 2 more years.  They will be granted in 2 year increments.  Employment Authorization would also have to be renewed at the same time.

Can someone subject to final order of removal apply?

Yes.  Again, we are waiting for the procedures to be published.

What if I am about to be removed from the U.S. by I.C.E. and believe I am eligible for DEFERRED ACTION?

Call the Law Enforcement Support Centers hotline at 1-855-448-6903 or ICE Office of the Public Advocate at 1-888-351-4024 let them know you are about to be deported and believe you are eligible for DEFERRED ACTION.    As always when calling these hotlines, be persistent and if the first line person does not know what you are talking about request to speak to a supervisor. 

If I receive DEFERRED ACTION will I be able to travel out of the United States?

USCIS is exploring this issue.  

I am expecting to have process outlines on Monday and as more detail becomes available, I will do my best to post.   This is a bit sketchy as it was just released this morning at 11am.   

I am available to discuss this with you if the need should arise.  You can reach me through my office 972.442.4244..   –Lori