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Some of you know that I was engaged by the late Sr. Maureen Joyce, the then-CEO at Catholic Charities of the Diocese of Albany, in July 2000, to help Catholic Charities launch an immigration program that would serve low- and no-income individuals from a 14-county area in and around the Capital Region. Catholic Charities created the immigration program to foster and facilitate family unity, freedom, and citizenship for eligible foreign-born persons by providing low-cost and high-quality legal services. Catholic Charities also engages in public advocacy and community training and outreach to advance the fair treatment of our nations’ immigrants, and to protect the rights of such immigrant and refugees.
My initial task was to obtain accreditation for the agency with the Board of Immigration Appeals (“BIA”), which is part of the Executive Office of Immigration Review (“EOIR”), so that Catholic Charities could provide services to individuals who were in need of immigration assistance. Once we did that, I hired a staff of one, who works part-time. More recently, we’ve hired another individual, who also works part-time. My work for the agency is part-time. Although Catholic Charities is authorized by the BIA to charge fees for its services, to date we never have.
The Catholic Legal Immigration Network, Inc., commonly known as CLINIC, is the legal support arm for Catholic Charities’ immigration programs across the country. CLINIC was established in 1988 by the U.S. Conference of Catholic Bishops to support the rapidly growing network of community-based immigration programs like ours in Albany. CLINIC’s creation enables Catholic organizations across the country to get the necessary training and institutional support they need to provide low or no cost immigration legal services to those in need.
Here are just a few facts about CLINIC:
• In 2017, CLINIC’s network conducted an estimated 276,000 consultations, more than half of which became cases for network agencies.
• Also, in 2017, CLINIC’s network filed approximately 247,000 applications, petitions, motions, or waivers. Those applications served about 500,000 people, including the applicants themselves and their dependents.
• Volunteers accounted for more than 84,000 hours of assistance in 2017, enabling programs to provide legal services to a broader base.
• And finally, also in 2017, CLINIC supported nearly 5,400 community outreach presentations, which reached nearly 325,000 people, all of which provided necessary and importation information about legal rights and options.
There are many “perks” of being member organization of CLINIC. For me, the biggest perk is being able to work with, and be supported by, a group of seriously talented immigration lawyers and advocates. Last month, and each year for nearly the last twenty, I have attended CLINIC’s Annual Convening. Among other things that takes place at the Convening, attorneys and advocates gain insight and premier education about immigration law, program management and advocacy. The Convening moves around the country each year. This year we were in Pittsburgh. In the past, we’ve been to Tucson, Portland, New Orleans and of course Washington, D.C. Regardless of the location, I come home every year so incredibly impressed by the level of knowledge that the attorneys and advocates who teach the programs have, and their incredible commitment to protect the dignity and the rights of the immigrants that they and we serve. I marvel at how much they know and how much I still have to learn. I am so incredibly grateful for their incredible passion and commitment.
CLINIC’s staff trains close to 10,000 people a year, in topics ranging from the basics of immigration law to the nuances of representing clients in detention and removal / deportation proceedings. It’s hard work and it’s very complex. They make it seem easy, and more than anything, it’s clear that they love what they do. It’s very motivating. When I return each year, I am energized to keep trying, to perhaps do just a little more.
In these very tumultuous and politically troubling times, CLINIC’s work, and ours at Catholic Charities in Albany, is more important than ever. Given the current political climate, the current make-up of Congress, and the fact that President Trump has shamefully shown no humanity to almost all immigrants except for perhaps “the best and brightest”, the work of CLINIC, its member agencies, and frankly all not-for-profit immigration programs across the country, needs your support. We all need to do our part.
My wife was listening to the news the other day about the border crisis (yes, it’s real, but certainly not in the way our President describes it) and suggested that I write about it. She’s right, I should write about it. And I will. But first, my New Years Eve debacle has one further (and hopefully final) chapter to it. (I feel like I need to finish the story.) I will be brief.
So, it’s bad enough that as the clock struck midnight on New Years Eve many of my colleagues and I were sitting at our offices or at our homes in front of our computers preparing to file temporary labor certification applications with the U.S. Department of Labor (“USDOL”) for our clients that participate in the H-2B visa program. As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL for a total of 33,000 H-2B visa numbers, and because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down.
Eventually, a week later, the USDOL fixed their computers, and all the applications were filed. Shortly thereafter, U.S. Citizenship and Immigration Service (“USCIS”) announced that it had received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019. Some of my clients were affected.
Fast forward to last week. The Department of Homeland Security (“DHS”) and the USDOL announced, after consultation with each other and after weighing several factors, including whether U.S. workers would be harmed, that an additional 30,000 H-2B visas would be allocated for the remainder of FY2019. Sounds great, right? Well it is, sort of.
The problem is, the additional visas will be available only to applicants who have held H-2B status in at least one of the past three fiscal years (2016, 2017 and 2018). These are called “returning workers.” So that means foreign nationals who have not participated in the H-2B visa program in the past three fiscal years, or even ever, are precluded from coming being sponsored by U.S. employers who have established a need for temporary workers (e.g., seasonal, peak load, etc.). Again, I have clients that are affected.
Case in point. I have two clients that are not only participating themselves for the first time in the H-2B visa program, but had identified a number of workers that were qualified to do the work their companies needed them for, but none of those foreign workers had ever participated in the H-2B visa program before.
Of course they could try to identify other workers that will meet the guidelines of the governments new rule (which has not even been published yet). But that takes time and can be expensive. And for what purpose? If the government is going to provide additional visas for the H-2B program, what sense does it make to limit the availability of those visas to foreign nationals who have been issued H-2B visas in the past? Seems pretty arbitrary to me?
The H-2B program is an absolutely necessary program for many, many employers who have seasonal or peak load business needs. The process for participating in it, however, is unnecessarily cumbersome, now seemingly arbitrary, and desperately needs to be reformed. Please, Congress, get to work and fix this.
Some of you will recall my post-New Years Eve rant about the H-2B nonimmigrant visa program, and specifically the mayhem that ensued as the clock struck midnight on New Years Eve when the U.S. Department of Labor’s (“USDOL”) servers had a meltdown. As the New Year rang in, there were applications for approximately 97,800 workers that were about to be filed with the USDOL and, because of the “unprecedented volume of simultaneous system users”, the USDOL’s computer system completely hemorrhaged and shut down. There was, according to the USDOL, over thirty times the user demand this past New Years Even compared to the previous year. Doesn’t that tell you something about the need for the H-2B visa program.
One week later – on a Monday – in the middle of the afternoon during a normal workday – the USDOL finally got its act together and most of the H-2B filings that were supposed to be filed on New Years Eve were filed. So, what happened after that?
Well, for one thing, U.S. Citizenship and Immigration Service (“USCIS”) recently announced that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of the government’s fiscal year for 2019. That means if an employer was not able to file its petition with USCIS on or before February 19, 2019, which was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019, then the employer was out of luck for 2019.
This is yet another example of a visa program that is desperately in need of reform and is woefully mismanaged.
In what can only be described as a glimmer of marginal and limited hope for some of our clients, on February 15, 2019, President Trump signed an omnibus spending bill which includes a provision providing limited cap relief to H-2B employers during FY2019. The Secretary of Homeland Security, Kirstjen Nielsen, has yet to announce how many additional H-2B visas will be made available for the remainder of FY2019.
The second thing that happened is the USDOL updated its procedures for processing H-2B applications. That is, the USDOL has proposed a rule that for all H-2B applications filed on or after July 3, 2019, which is the earliest an employer can start the H-2B process for FY2020, applications will be randomly ordered for processing based on the date of filing and the start date of work requested.
Some of you will recall previous rants of mine related to the H-1B program, and specifically USCIS’s use of a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. I counsel my clients who we file H-1B petitions for with USCIS to “keep their fingers crossed.” Imagine that a client hires you, pays you your fee, and you tell them to “keep their fingers crossed” that USCIS simply selects their petition – in a lottery system. The system is ridiculous.
Politics aside, the United States is experiencing a strong economy with record-low unemployment. The H-2B program’s congressionally mandated cap of 66,000 visas is entirely inadequate to meet the seasonal needs of the many businesses that participate in the program. And for all the nay sayers who say “Hire American”, this program requires employers to recruit for available U.S. workers. In most cases, they’re aren’t any for these positions. And quite candidly, if everyone would allow for a moment of truth, U.S. workers simply do not want to do the jobs that are generally utilized in the H-2B program. It’s just that simple.
According to the H-2B Workforce Coalition, if Congress does not take immediate steps to raise or eliminate the H-2B cap, over 70% of seasonal positions for the second half of fiscal 2019 will go unfulfilled due to cap limitations.
Our government must come up with a better and more equitable system within which employers can hire the help that they need. The H-2B program is an absolutely necessary program for many many employers. The process for participating in it, and the ability to participate in it, however, needs to be totally reformed.
Recall that the H-2B visa program requires employers (or their attorneys) to sit by their computer at the stroke of midnight (on the east coast anyway), on New Years Eve, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company.
USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
My annual ritual. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having increasingly more difficult conversations with their clients who wish to hire foreign nationals into what are called “speciality occupation” positions. Last year, after President Trump signed an Executive Order on April 18, 2017 entitled “Buy American, Hire American” (“BAHA”), the conversations became very different from previous years. This year it seems even worse. Let me explain.
The purported purpose of the “Hire American” portion of BAHA is to create higher wages and employment rates for U.S. workers, and to protect their economic interests by rigorously enforcing and administering the laws governing entry of foreign workers into the United States. President Trump specifically highlighted the H-1B visa program, directing the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to suggest reforms to help ensure that H-1B visas are awarded to the most-skilled and highest-paid foreign workers.
As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field.
Notwithstanding what you read in President Trump’s “fake” tweets, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First and foremost, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An executive order cannot modify existing statutes or regulations. However, BAHA does clearly direct the above-referenced agencies who administer immigration programs to approach their administration obligations from an enforcement standpoint rather than as providing a service to those parties that they regulate. Consequently, a number of agency memoranda have either been issued or repealed since BAHA was signed by the President.
In 2018, practitioners saw how BAHA would play out in real time. Quite simply, as a result of BAHA, employers, their current / prospective employees and their attorneys are being besieged by requests for evidence (“RFE’s”) from USCIS. According to The Wall Street Journal, “the administration is more closely scrutinizing applications for the high-skilled visa program known as H-1B, sending back more than one in four applications between January and August [of 2017] via “requests for further evidence,” according to data from [USCIS], which administers the program. A year earlier, fewer than one in five were sent back.”
In terms of my own practice, and anecdotally what I am hearing from virtually every colleague of mine that practices in this area, these RFE’s are making requests that we’ve never seen before, including questioning the prevailing wage classification and level selected on the underlying LCA associated with the H-1B petition, and also questioning whether the position requires at least a Bachelor’s degree in a specific educational specialty.
Specifically, USCIS is taking the position that a Level 1 wage, as a general matter, cannot support a claim that the offered position is in a “specialty occupation.” Alternatively, the RFE’s often claim that if a position is sufficiently complex to be considered a “specialty occupation”, then it cannot have a Level 1 wage associated with it. Some RFE’s make both arguments and then ask the employer-petitioner to essentially prove the impossible.
And, where at first we starting seeing these RFE’s in specific types of case (e.g., software developers, computer systems analysts), we are now seeing them issued in a wider array of occupations, including engineers (e.g., civil, mechanical, industrial, etc.), lawyers, dentists, teachers, physicians, and accountants/auditors.
Mercifully for our clients we have been able to successfully overcome these RFE’s, but now without a lot of extra time and effort put into the case that, given the existing regulatory framework and case law, seems absolutely unnecessary. These RFE’s have added substantial expense and uncertainty to the H-1B process. The result is that it discourages immigration without making any formal policy change. This needs to change.
You can’t make this stuff up. This is the world that I and a few other local colleagues of mine work in.
So, I asked my wife what she wanted to do to bring in the New Year (not that we usually do anything more than have dinner with some close friends), with the caveat that no matter what it was, I had to be home … in front of my computer … at midnight … because I had work to do. That’s right, many of my colleagues and I (on the East coast anyway) were at our offices or at our homes in front of our computers working as the clock struck midnight. And then mayhem ensued, and I promise you, it was not fireworks or noisemakers. Let me explain.
One of the visa programs that some of my clients use is the H-2B nonimmigrant visa program. The H-2B nonimmigrant visa allows foreign nationals who are citizens of certain named countries (with limited exceptions) to accept “temporary” non-agricultural employment in the United States (e.g., landscape workers, ski resort employees, etc.). Before doing so, however, the sponsoring employer must first obtain a temporary labor certification from the U.S. Department of Labor (“USDOL”) by establishing that there were no willing, able, and qualified U.S. workers available during a recruitment period.
Like some other visa programs, there is an annual numerical limitation for this visa program; specifically there are 66,000 H-2B visas that are available in each government fiscal year. Also like some other visa programs, there are more companies filing applications for a temporary labor certification from the USDOL than there are visa numbers available.
Of the 66,000 worker positions that are available annually, 33,000 are allocated to each half of the fiscal year. This allows industries that traditionally have opposite seasons (e.g., summer beach resorts v. winter ski resorts) to have a “fair” chance at participating in the H-2B program to obtain necessary temporary workers. Because of the incredible demand associated with the H-2B program (indeed even our President allegedly uses this program for his resorts), H-2B applications are now date and time stamped to the millisecond in order to establish the order of submission. Applications are processed by the USDOL in the order that they’re received. And for the second half of the government’s 2018 – 2019 fiscal year, the period for filing a temporary labor certification with the USDOL commenced one millisecond past midnight on New Years Eve.
As the New Year rang in, the USDOL later reported that there were applications for 97,800 workers that were about to be filed by an “unprecedented volume of simultaneous system users.” The USDOL noted there were 22,900 server login attempts on January 1, 2019 versus a mere 721 attempts in the same period on January 1, 2018. Not surprisingly, the government’s online filing system crashed. The exchange that went on over the next couple of hours, well past midnight, on the American Immigration Lawyer Service’s (“AILA”) H-2B attorney Listserv, bordered on a combination of sad, pathetic, and ridiculous. It was also really so unnecessary.
Readers of this piece know how much I long for meaningful reform to our immigration system. There are many substantive examples that I’ve written about over the past few years. This is not one of them. This is a procedural reform, somewhat selfishly written for sure (as anyone who knows me knows that I can barely stay up to 9:00 pm on a normal day), but it’s important.
What kind of program requires employers (or yes, even their attorneys) to sit by their computer at the stroke of midnight, on New Years Eve no less, requiring them to hit “submit”, tens and sometimes hundreds of times, so they can participate in a visa program to fill necessary positions with their company? And in today’s day and age, what kind of government is so ill-equipped to handle the unprecedented volume that they themselves created? Was the system not adequately stress tested? Was no one monitoring it (perhaps in light of the current government shut down)?
As annoying as this whole debacle has been, it’s not missing New Years that bothers me. Everyone who knows me knows that I’m usually sleeping at the stroke of midnight in any event. It’s that our government can’t come up with a better and more equitable system within which employers and their counsel can work to get things done. It really is ridiculous. The H-2B program is an absolutely necessary program for many employers. The process for participating in it, however, is unnecessarily cumbersome and needs to be reformed
For those companies (or their attorneys) filing outside of the eastern time zone, the filing time was an hour earlier for each time zone west you go.
 At that time, the USDOL indicated that employers had prepared 5,400 H-2B applications, which were in a queue to be submitted to the USDOL, seeking a total of 97,800 workers.
The midterm elections have come and gone. No one could (or should) disagree, no matter what your political affiliation is, that the politics leading up to and even since the election were and continue to be toxic, at best. Case in point was and is the President’s use of the “caravan” of migrants that trekked across Central America (that he claimed were going to invade our southern border) as the impetus to issue an “asylum ban”.
Specifically, on November 9, 2018, the President issued a proclamation that, in conjunction with a rule promulgated by both the Department of Homeland Security and the Department of Justice, bars any individual from seeking asylum who enters the United States from Mexico between official ports of entry. The proclamation will remain effective for 90 days (and can be extended) or until the establishment of a so-called “safe third country” agreement with Mexico.
Advocates not surprisingly (and in my view appropriately) are up in arms, arguing that the President’s action eliminates fundamental due process protections for asylum seekers. They specifically argue that U.S. law clearly states (and it does) that all persons arriving to the United States, no matter where they enter from, have the right to seek asylum. It is true that not everyone is eligible for asylum, but nevertheless, under current U.S. law, everyone has the right to pursue it no matter whether they seek asylum at a port of entry or otherwise.
Specifically, section 208(a)(1) of the Immigration and Nationality Act (“INA”) provides that “any alien who is physically present in the United States or who arrives in the United States … whether or not at a designated port of arrival … may apply for asylum[.]” This seems pretty clear to me.
As a result of the President’s actions, several immigration advocacy organizations sued in U.S. District Court in San Francisco to halt the asylum ban. In a ruling issued on November 19, 2018, U.S. District Judge Jon S. Tigar temporarily blocked the President’s policy of denying asylum to migrants who cross the southern border into the United States without inspection, saying the policy likely violated federal law on asylum eligibility. Really? No kidding.
Judge Tigar wrote that “[w]hatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
The Trump Administration appealed, and just recently, the 9th Circuit Court of Appeals, in a 2-1 decision, also refused to immediately allow the Trump Administration to enforce the ban.
The asylum ban represents yet another effort by the President to turn away those seeking protection under our asylum laws. Since taking office, the Trump Administration has detained more asylum seekers, it created the infamous policy that separates asylum-seeking families in connection with its “zero-tolerance” policy, and former Attorney General Jeff Sessions issued the decision Matter of A-B-, which restricts the ability of domestic and gang violence survivors to obtain asylum.
Writing for the 9th Circuit, Judge Jay Bybee, a nominee of Republican President George W. Bush, stated, “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office.’
Collectively, all of the President’s measures undermine our country’s longstanding commitment to protect those fleeing violence and persecution. Since its inception, the United States has been a beacon for those pursuing freedom and protection against persecution. The President and Congress can ensure the integrity of our borders while still upholding these fundamental truths. They just need to do it thoughtfully and lawfully.
The midterms are upon us. I don’t need to tell the readers of this blog how I hope it ends up.
I was struck recently by two quotes I saw within moments of each other about the “caravan” of immigrants trekking across Central America that are, according to President Trump, preparing to invade our southern border. On the one hand, there’s former Vice President Biden saying “[t]he press is not the enemy of the people. Immigrants are not animals. My hope and prayer is that all of our leaders will work to lower the temperature in our public dialogue, and I have faith that they will do that.” In contrast, Department of Homeland Security Secretary Kirstjen Nielsen recent stated that there is no “intention right now to shoot at people” from the Central American migrant caravan if they attempt to cross the United States border. I would suggest that Secretary Nielsen’s statement is not quite “lower[ing] the temperature in our public dialogue” that Vice President Biden was suggesting.
Days after I read the above quotes, and in stark contrast to the above quotes, I read a comment by Tarek El-Messidi, a Chicago-based activist who helped coordinate a fundraising effort by two Muslim organizations that raised about $200,000.00 to help victims and their families following the shooting massacre at the Tree of Life Synagogue in Pittsburgh. “Putting our religious differences or even your political differences aside, the core of all of us is that we have a shared humanity. … We really wanted to reach out as human beings to help.”
The politicization of our broken immigration system (and yes, it’s very broken and has been for way too long) is brutal to watch. Our political climate is toxic right now and we need more thoughtful approaches to some of the terribleness that we’re seeing (like Mr. El-Messidi’s response) to the massacre that took place in Pittsburgh.
The immigrants stuck in our broken immigration system, whether they are here lawfully or not, are paying a very big price. For example, in April 2018, President Trump implemented a “zero tolerance policy”, which as anyone even barely paying attention to the news knows resulted in the widespread and inhumane separation of parents and children arriving together at the United States southern border. The President’s policy mandates the prosecution for illegal entry of everyone apprehended between ports of entry, including those who are lawfully allowed to seek political asylum in the United States (no matter where they enter).
During the President’s first two years, his administration has also implemented policies that are undermining the independence of our immigration judges and weakening due process in the immigration court system. The changes adopted by the Department of Justice over the last year include steps to impose numerical quotas on immigration judges and attempts to curtail procedural safeguards. Immigration courts play an important role in affording noncitizens an opportunity to present claims for relief and stay in the United States. The administration’s changes threaten the integrity of these courts.
There have been other issues too, including among many others, the Trump administration’s efforts to rescind DACA relief for Dreamers, congressional efforts to curb legal immigration, and of course, who can forget the Travel Ban?
More recently, along with the ridiculous rhetoric in connection with the caravan, are the President’s claims that he will end birthright citizenship by means of Executive Order, vows to hold undocumented immigrants in detention until they could be deported, and to block asylum seekers from claiming asylum if they are caught crossing the border outside of legal ports of entry. Oh, and lest I forget, the President has a plan to send thousands upon thousands of our military personnel to save the country from the “bad hombres” and “Middle Easterners” in the caravan preparing to attack our southern border.
Please, make him stop.
I don’t know who’s in the caravan, but the data (i.e., the facts and not the fake news) does not support any of the President’s statements that these individuals are “bad hombres” or even “Middle Easterners”. More than likely, these individuals are leaving their home countries in search of a better life (i.e., seeking refuge from political violence in Honduras where the caravan originated), just like our ancestors did when they left Europe and arrived on Ellis Island. We welcomed them then. We should do so now.
Recently, in a rambling and pretty much unintelligible speech from the White House, which was as always filled with lies and falsehoods, the President once again politicized the immigration debate. He once again chose politics instead of offering real solutions, when he announced plans to rewrite U.S. asylum law and procedures and to construct tent cities where families and asylum seekers could be detained for years.
Not surprisingly, as with any proposal that the President has offered mere days before the midterms, details of the plan are conspicuously absent, but instead will be forthcoming after the election. Of course they will. Just a little more red meat for his base. Please, make him stop.
 DACA stands for Consideration of Deferred Action for Childhood Arrivals.
 The President claimed that only 3 percent of asylum seekers show up for immigration court proceedings when the Department of Homeland Security’s own numbers show that the vast majority appear for their scheduled hearing.
A colleague of mine called me recently about an I-9 issue, and specifically about an investigation that was taking place with a client of hers. It got me thinking about immigration compliance in the age of Trump.
It seems like barely a day (certainly a week anyway) goes by when we don’t see a story where Immigration & Customs Enforcement (“ICE”) has raided a workplace somewhere and hauled away dozens, sometimes hundreds of workers, allegedly working unlawfully in the United States. No doubt there are some employers who absolutely know that they have some workers who should not be working for them. For others it comes as a seeming total surprise. Certainly when that calls comes in, it creates an uncomfortable conversation with the client (or perhaps prospective client), but ethically, our duty is clear as to how we as lawyers need to advise them. The Immigration Reform and Control Act (“IRCA”), passed in 1986, imposes penalties on employers for knowingly hiring or continuing to employ persons who are not authorized to work in the United States.
Form I-9, Employment Eligibility Verification (“I-9”), is used by employers to verify the identity and employment authorization of individuals hired for employment in the United States. All United States employers are required to ensure the proper the completion of the I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens alike. The I-9 is required to completed by both employees and employers (or authorized representatives of the employer).
The primary worksite enforcement mechanism utilized by ICE during the George W. Bush and Obama years was the I-9 audit along with the administrative fine procedure established by IRCA. ICE had historically viewed the I-9 audit as its most important administrative tool in building criminal cases against employers who knowingly (or even unwittingly) violate the law, as well as a tool for bringing employers into compliance with the law. Audits involve a comprehensive review by ICE of an employer’s I-9 forms and payroll records. Audits can result in civil penalties. Audits can also provide the groundwork for the government to commence criminal prosecution of employers who knowingly hire undocumented workers and/or commit other more serious violations.
Nowadays, it seems like ICE has abandoned the I-9 audit and administrative fine procedure under IRCA and, over the past two years, is now focusing on criminal worksite enforcement investigations. These are resulting in high-profile raids which themselves are resulting in the arrests, criminal prosecutions, and/or deportation of thousands of unauthorized workers.
This is happening to all employers, both big and small. Indeed, as I’ve written here before, this is happening in my own hometown of Saratoga Springs, New York all too frequently because of its deep ties to the horse racing industry and its large service and hospitality industry.
So what is an employer to do? Where do I begin? Bottom line? Every employer needs to establish an I-9 employment eligibility verification system. You would be surprised to learn how many employers I work with that do not have a system set up to do this. And the law has been in effect since 1986!
In setting up an I-9 compliance system, the employer needs to be careful as to the procedure it uses during the I-9 employment eligibility verification process. The procedure it uses must meet the standards set forth under IRCA both to determine employment eligibility and to assure that the employer has not engaged in unfair immigration-related employment practices.
Here are some very basic but very important ground rules. First, every employer should have a standard, written I-9 compliance policy which will be followed by all managers who have hiring authority. If you’re a small employer, then the burden may fall upon the owner. Whether big or small, a standard written policy needs to be in place. Every employer should also have one employee who is in charge of the company’s compliance program. This is particularly important when a company is big, and perhaps spread out across many offices or even states.
Next, the employer’s I-9 compliance policy should be part of, and not separate from, the employer’s overall hiring policy. Indeed, all company materials, including hiring application forms should be reviewed to make sure they are compliance with this policy. Employers also need to make sure that the managers who are in charge with implementing this policy are intimately familiar with the I-9 employment verification procedure. What’s the point of having the policy if no one knows how to properly complete or store the I-9?
Employers need to also evaluate, and periodically reevaluate, their I-9 compliance program and, importantly, conduct periodic in-house audits of their I-9 records. These audits will assist employers in determining whether changes in policies or procedures are required. And, perhaps equally as important, these audits will help employers reduce their exposure in the event of an ICE investigation.
And finally, whether it’s for setting up the compliance program, assisting with an in-house audit, or if ICE just happens to show up at your door, although this may sound self-serving, employers should consult with competent legal counsel on all of these issues. I-9 compliance issues, along with decisions on whether to hire or fire an individual for immigration-related reasons, raise very complex legal issues for which competent legal advice is required.
The sheriff in town is no longer new. And he has deputized his deputies in ways that his predecessors never did. Employers need to be extremely vigilant in terms of how they run their businesses, both big and small. While historically WE may have been able to predict those businesses or industries where these issues would be arise, no more is this the case. Everyone now seems to be fair game for ICE enforcement.
 Employer liability is not limited to just those situations in which the employer has actual knowledge that one if its employees does not have permission to work; rather, an employer may also be liable if it has constructive knowledge that an employee is unauthorized to work. For example, an employer may be found to be liable if it deliberately fails to investigate suspicious circumstances, such as when the employee has stated on the I-9 that he or she is a permanent resident but the employer is then asked to sponsor the employee for employment (either temporarily or permanently).
 These raids regularly result in the arrest of dozens and sometimes hundreds of allegedly unauthorized workers, who are then themselves detained for criminal prosecution (e.g., for document fraud or identity theft) and/or deportation. As for the employers, ICE agents will seize the employer’s record which then, as a result of an investigation, can result in, among other things, the filing of criminal charges against the companies and their individual owners and managers. Criminal complaints often include charges of harboring undocumented workers, document fraud, tax evasion, money laundering and/or knowingly hiring undocumented workers. None of this is new. It’s just way more prevalent than it used to me. Way more.
On the one hand, we have a President who is married to a naturalized citizen of the United States. To my understanding, Melania Trump was originally an O-1 nonimmigrant in the United States (a temporary visa status reserved for, in her case, a fashion model of extraordinary ability in business) who later used a comparable immigrant category to obtain lawful permanent residence. She then, eventually, applied for naturalization and became a citizen of the United States.
Fast forward, in what can only be described as a case of chain migration (something the President has professed to being opposed to), the President’s wife then petitioned for her own parents to come to the United States as immigrants, as she has the legal right to do under the law. Fast forward one more time, Mrs. Trump’s parents do come to the United States and, after a period of time, they apply for naturalization themselves, something they also have the right to do under the law. These naturalization applications, according to recent news reports, were granted. I work with clients every single day under similar fact patterns.
Juxtapose this with the fact that the President, himself individually and through his minion, Stephen Miller, is actively pursuing a policy to make it harder to become a lawful permanent resident (i.e., a Green Card holder), or for some lawful permanent residents to obtain citizenship. This is on top of all the other ridiculousness we’ve witnessed thus far over the summer, including the forced (and in many instances continued) family separations, actively opposing the continuation of Deferred Action for Childhood Arrivals (“DACA”), among other acts of stupidity and egregiousness.
How is this so? How can a man who’s own wife (indeed even his own ex-wife too) and who’s own in-laws are immigrants to this country be so callous and cold-hearted to literally an entire class of human beings (i.e., anyone who was not born in the United States but yet wants to permanently reside in the United States)? Can someone explain this to me? Is the President’s family better than all the other aliens who want to become permanent residents of the United States? Or do they simply have more means?
And what about Mr. Miller? It seems that his family too were immigrants to the United States, arriving through Ellis Island from what is now Belarus. It seems that Mr. Miller’s relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and become very successful. That’s a great story.
With that as backdrop, the President, through Mr. Miller, is now pushing to enact a policy that could penalize legal immigrants whose families receive a wide array of public benefits and make it more difficult for them to obtain citizenship. At its core, the President’s proposal would penalize lawful permanent residents if they or their family members (including their U.S. citizen family members) have ever used government benefits (e.g., health care subsidies under the Affordable Care Act, some forms of Medicaid, the Children’s Health Insurance Program, food stamps and the Earned Income Tax Credit). If I was a permanent resident, because one of my sons receives services from the county, I could actually be impacted under this law.
Up until 1996, lawful permanent residents were eligible to receive public benefits on the same terms as U.S. citizens. In 1996, however, Congress passed a welfare reform law that barred permanent residents who resided in the United States for less than five years from participating in any means-tested public benefit programs (e.g., Temporary Assistance for Needy Families, Supplemental Security Income, Medicaid/Children’s Health Insurance Program, and food stamps). The 1996 law labeled newly arriving immigrants who might not be able to provide for themselves as “public charges,” making them inadmissible unless they could demonstrate that they were not subject to that provision of the law.
The law still allows for the removal of lawful permanent residents who, within five years of their arrival to the United States, become public charges. That said, administrations prior to the current one have limited the public charge definition in this context to immigrants who use cash welfare programs or long-term institutional care funded by the government. Consequently, very few people have been removed from the United States. All this could change, however, if Mr. Miller gets his way. How so?
The law would redefine the terms “public charge” and “means-tested public benefits” to include a much wider variety of federal programs. Second, the government could remove legal permanent residents for using benefits. Under the President’s proposed policy, lawful permanent residents could be removed for using a wide variety of public benefits, potentially including food and nutrition assistance, federally subsidized health insurance through Medicaid or the Affordable Care Act, and even education benefits. Third, although the law currently allows immigration officials to refuse to admit prospective immigrants to the United States who could become public charges, the new policy, as currently written, could be interpreted to make a high-school degree or better a prerequisite for admission to the United States, or for someone to have a certain amount of assets. (This would obviously not impact the President’s in-laws, but could severely impact low-income or less well-educated immigrants from coming to be with their families). And finally, although also on the books now, the new policy would instruct federal agencies to request reimbursement for benefits used by legal immigrants. (This rarely happens now.)
So, where does that leave us? The haves and have nots? It sure sounds like it. It sure sounds like the President and Mr. Miller are attempting to portray legal immigrants as a drain on our system, somehow taking advantage of people like you and me. This is simply not the case. According to the CATO Institute, “[o]verall, immigrants are less likely to consume welfare benefits and, when they do, they generally consume a lower dollar value of benefits than native-born Americans.”
Mr. Miller’s family is an example of how immigrants can come to the United States, work hard, and become successful. But not everyone’s experience in America will be perfect, and sometimes individuals need to lean on our government for some help. No one should be forced to make a decision between ensuring their legal status in the United States is preserved against making sure their family is healthy and can eat. No one should ever have to make that decision.
Perhaps we were all wrong about President Trump? Maybe he does listen to the women in his life? Current reports suggest that the President’s own wife and daughter, Melania and Ivanka Trump, were the impetus behind the President’s executive order to end the separation of families at our southern border. I guess the fact that all four living former First Ladies condemned President Trump’s border policy was not enough. Quite frankly, I think we all owe a huge debt of gratitude to the brilliant journalists at all the Fake News organizations across the country who reported on the inhumanity we all saw as families were torn apart from each other as they tried to apply for political asylum in the United States.
Let’s back track a little bit though, because this crisis is far from over.
I recently noted the profound changes that happen in the world of immigration, literally on a daily basis. Two more cases in point. Last week, Attorney General Jeff Sessions issued the precedent decision of Matter of A-B-. This case held that victims of domestic violence no longer qualify for asylum protection in the United States. Since President Trump was inaugurated, the Attorney General has used his position to literally rewrite our immigration law. Through what has been a historically cautiously-used power, the Attorney General has taken certain immigration cases that were previously decided by the Board of Immigration Appeals (“BIA”), and in this case, has essentially eliminated a previous right of persecuted people to seek asylum in the United States.
And then of course there was President Trump’s now former border policy of separating families from each other as they endeavor to seek refuge in the United States from domestic and gang violence in their home countries.
With respect to Matter of A-B-, in a case he referred to himself, Attorney General Sessions narrowed the criteria for demonstrating membership in a particular social group and overruled the holding of Matter of A-R-C-G-. According to the Attorney General, domestic violence victims and other victims of crimes perpetrated by private, non-government actors no longer generally qualify for asylum. With this decision, the Attorney General continues to undermine the independence of both our Immigration Courts and the BIA.
The Attorney General’s decision in Matter of A-B- is a huge setback that overturns a precedential decision which firmly recognized the right of women who are fleeing domestic violence to avail themselves of the protection our asylum laws provide when their own governments fail in their duty to provide protection.
So now we’ve got women and families who have to make a choice. If they remain in their home countries, they may very well die as a result of domestic and gang violence. If they pick up and try to seek refuge in the United States, they now face an incredible uphill battle to obtain protection under our laws. And worse, if parents bring their minor children with them, they’ll be detained, albeit perhaps now together, potentially all throughout their lawful efforts to remain in the United States.
Along with his wife, daughter and the former First Ladies, literally everyone was opposed to Trump’s policy of separating or detaining families with minor children, including corporate executives, religious leaders across all faiths, health experts, and the list could go on and on. Similarly, there is a very long list of attorneys, advocates, retired immigration judges (“IJ’s”) and former members of the BIA that are opposed to Attorney General Sessions’ new decision in Matter of A-B-.
To date, the President’s border crossing policy has separated more than 2,300 minor children from their parents. The research is clear. According to Charles Nelson, a pediatrics professor at Harvard Medical School, “[t[he effect [of family separation] is catastrophic.” According to Dr. Nelson, the children’s heart rates go up, their bodies releases stress hormones, and over time, all of this wreaks long-term damage, both psychologically and to the physical structure of the child’s brain. Why on earth would the President want to do this?
As to the difficulty that women who have suffered domestic violence will now face trying to seek protection under our laws, in one fell swoop, the Attorney General erased a 15 year effort of the immigration courts and BIA to finally recognize that victims of domestic violence may qualify for asylum as a member of a particular social group.
The Trump Administration’s policies are doing nothing more than dehumanizing a large population of individuals who live in Central America, and specifically women and families who are subject to domestic or gang violence. When will this President stop the madness?
 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
 Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).