If you are a business owner that employs immigrants, a surprise visit from ICE (Immigration and Customs Enforcement) can be a nerve-racking experience to say the least. A corporate immigration audit can lead to fines or even criminal charges if problems are uncovered, or it can mean the termination of most of your workforce.

Any business is susceptible to corporate immigration audits, but there are ways to survive them.

Who gets audited?

ICE has greatly stepped up its enforcement of these audits throughout the tenure of the Obama administration through I-9 compliance regulation. The reasoning behind the audits is the belief that employers who are hiring undocumented workers are at least partially responsible for fueling the incentive for undocumented immigration.  Fairly or unfairly, these employers are being stereotyped as thrifty business owners who are trying to save money by hiring undocumented immigrants at lower wages than what legal US residents would work for.

For many employers, these stereotypes are not true, but they still must be on the watch for an audit regardless. There are plenty of business owners who collect all of the information that is necessary and treat all of their employees equally, but who do not realize that the employee information provided to them is fraudulent, potentially leading to penalties in the event of an audit.  On the other hand, if the business owner turns an employee away because he or she thinks information provided by a foreign employee could be falsified, he or she could be faced with discrimination charges. Either way, this can certainly devastate a business.

The best defense is a good offense

The best way to survive an audit is to be proactive – and that means being prepared and organized especially when it comes to documentation and processes. There is now an electronic program called E-Verify that business owners can use to check the validity of their applicant’s I-9 employment information. The use of this program is now mandatory in some states.  But even if you do not use E-Verify to double check employment eligibility, I-9s should be completed for all employees and retained for the appropriate amount of time.

Employers should also consider conducting random audits on themselves from time to time to be sure that they have all of their employees’ I-9 information. If there is information missing, it should be added, then initialed and dated at the time that it is added.

Be sure to document any and all steps you have taken to obtain the proper employment verification information. It is hard not to be sympathetic to the human aspect of these situations, but as the business owner, you must do your best to comply with the law and protect yourself, as well as the future of the corporation.

If you are unsure about any of the requirements, consult the professional legal guidance of an experienced immigration attorney as corporate immigration audits are not to be taken lightly.

While the topic of immigration has been largely viewed as an issue reserved for the federal government, there are cities across the United States finding their own approach to dealing with immigration issues related to an increasing number of undocumented residents.

Instead of isolating and discriminating against these communities, cities such as New Haven, Connecticut and San Francisco, California are taking a new approach towards them with the implementation of a municipal ID program.

Municipal IDs 101

These programs allow a municipality, such as a city, to issue identification cards to residents, regardless of their United States citizenship status. The programs differ from city to city, but most require that the person provide a form of identification, such as a passport, and a document that will prove that he or she has been residing in the city for at least fifteen or thirty days. This documentation can be provided in the form a bill, pay stub, or any other document that would prove residency.

The identification cards are inexpensive and must be renewed periodically.

Pros and Cons of the ID card system

These municipal ID cards have proven to be a functional tool to allow undocumented individuals to more openly integrate into the community and contribute to the economy. The identification cards create opportunities for immigrants to open bank accounts, find housing, and use city programs such as hospitals and libraries.

Trouble and skepticism have risen around the cards because some people are worried about the safety of the immigrants using them. Anti-immigration groups have requested the names of all of the immigrants who have requested a municipal identification card, so that they can turn those names over to the federal immigration authorities, perhaps for deportation.

To date, the participating cities have refused to turn over this information to protect the immigrants’ rights to privacy and safety. Some cities, however, such as Dayton, Ohio, have created variations of their own municipal ID program and are requiring immigrant status checks to be performed on those who are suspected of serious crimes.

Opponents of the program argue that the existence of these programs is a violation of federal law as it creates a sanctuary for undocumented immigrants, and, furthermore, that the municipal identification program invites increased criminal activity to the areas in which it is practiced. The cities which have municipal identification cards maintain that the cards do not grant the immigrant legal residency or citizenship; and that the cards merely give immigrants a document that makes it easier for them to live and work in the community. They further suggest that the program does not compromise or interfere with the federal process for naturalization .

Additionally, the Mayor of New Haven, CT, John DeStefano Jr., announced in December that he hopes to ask state legislators to allow undocumented aliens to be granted the right to vote. Actions such as those by DeStafano fuel disputes in public debate about whether these municipal ID card systems will eventually lead to immigration changes on a larger scale.

Image Credit: http://www.hispanicallyspeakingnews.com/notitas-de-noticias/details/oakland-ca-to-issue-municipal-id-cards-to-all-immigrants/3179/

On March 10, 2010, USCIS granted Chilean nationals present in the United States temporary nonimmigrant status based on the catestphoic earthquake that occurred in Chile.  This allows visitors on visas to legally extend their stay for 6 months.   These benefits also include the possibility to get work authorization and expedited processing of applications for immediate relatives of United States citizens and LPRs (I-130s).

If you are a Chilean National currently in the United States and are unable or unwilling to return home because of the earthquake, please contact our office and we would be happy to discuss your available immigration options.

Aliens with extraordinary talents or abilities in the sciences, arts, education, business, or athletic field can seek entrance into the United States through an O-1 nonimmigrant visa.  Extraordinary ability must be demonstrated by proof that the applicant has sustained national or international acclaim, which can be proven by submitting evidence such as prizes or awards that have been received, acclaimed published materials, or extremely high salary earnings based on employment contracts.  O-1B visas are designated for those involved in the motion picture or television industry, while O-1A visas are designated for all others.  Once a visa is approved, it allows for three years of residence in the United States, as well as family members or staff to accompany the alien.  However, the alien must continue to work in the said field that they have excelled in, or else the purpose of the visa will no longer be satisfied, and the alien must return home.

For more information, click here.

Retired Supreme Court Justice O’Connor weighed in on the recent Senate bill passed in her home state of Arizona.  While acknowledging that Arizona does have a legitimate concern with immigrants illegally crossing the border from Mexico, she still finds that the Bill goes to far.  The bill, on its face, allows state police officers to question a person’s residency status, and if information is not adequately provided the person can be imprisoned and even deported.  While many argue that this law only does what federal law already allows federal agents to do, O’Conner looked beyond the face of the law when expressing concern that it would allow officers to target people who look Hispanic, thus legalizing racial profiling.  She has no doubt that the law will be the subject of extensive litigation over application and the constitutionality of the law.

The ABA issued a report, conducted by Arnold & Porter LLC, outlining what it found to be the most pressing issues with the current immigration judicial system and making several recommendations for system restructuring to held ease the burdens.

The report states immigration courts have more than 280,000 proceedings a year.  This amounts to over 1,000 heard by each immigration judge a year.  The BIA decided more than 30,000 appeals a year, and of these more than 10,000 were filed for appeal to the federal circuit courts.  This amounts to about 17% of the total cases handled by the federal circuit courts.  This has amounted to the court systems being overwhelmed with backlogged immigration cases, and thus, effectively robbing many aliens of any chance of a fair hearing; this is especially alarming given the high stakes in removability proceedings, as in many times the alien is being faced with being sent back to a place they had hoped to leave behind.  The report also states that there is great disparity between the immigration judges, determining that success is more often based on the judge that oversees the case than the actual merits of the case.

Thus, the report calls for an overhaul of the system, and proposes three restructuring themes that would ease the burden on the immigration judicial system and create more uniformity in the system.  The Report also suggests that certain provision of the INA should be reformed, allowing certain undocumented noncitizens to more easily become lawful permanent residents through the adjustment of status process.  It also recommends a narrowing of the definitions of aggravated felony and crimes involving moral turpitude to allow more fair application for noncitizens who have had longstanding ties to the United States.

For more information, please see the extensive and insightful report, located here.

A Jamaican man was convicted of conspiracy to commit a robbery, and on this basis was found to be removable as an aggravated felon.  Respondent filed a motion to terminate, but this was denied by the Immigration Judge, so he appealed, asserting that his conspiracy conviction did not require a finding of commission of an overt act, and thus is not an aggravated felony under 101(a)(43).

The BIA agreed with the Respondent, finding that the Immigration Judge went too far in considering evidence that showed that the conspirators actually did carry out the alleged robbery, saying that only the offense that is actually charged can be considered.  Thus, a conviction for conspiracy to commit a theft cannot be considered a theft offense under 101(a)(43)(G), even if there is evidence that the theft was completed.  On the issue of the conspiracy conviction, for the purposes of 101(a)(43)(U), the court held that the conspiracy does not require the commission of an overt act.  This conclusion was based on the Supreme Court decisions in Whitfield v. US, 543 U.S. 209 and United v. Shabani, 513 U.S. 10, which found that Congress had intentionally removed language from the statute negating the need to show an overt act to sustain a finding of conspiracy under the Act.  They also looked at the common law meaning of the term conspiracy, which met the same conclusion.  Thus, the court held that conspiracy under 101(a)(43)(U) does not require a finding of the commission of an overt act in furtherance of the conspiracy by one of the conspirators, and the Respondent was thus still removable.

Matter of Richardson, 25 I&N Dec. 226 (BIA 2010).

A Peruvian man came to America on a nonimmigrant work visa, but overstayed and subsequently engaged in unauthorized employment.  DHS later approved an I-140 on his behalf, but then issued him a Notice to Appear shortly after.  He argued before the Immigration Judges that based on his approved I-140, he should be eligible for adjustment of status under INA 245(i).  The Government argued that he is not eligible because of his period of unauthorized employment.  The Immigration Judge agreed with the Government and denied his application for Adjustment of Status.  On appeal, the alien argued that the unauthorized employment provisions of second 245(c) do not apply to adjustment of status under 245(i).  The Government rebutted this argument by asserting that, instead, section 245(k)’s unauthorized employment provision does.

The BIA looked at the plain language of the INA as a whole, and determined that the Attorney General does not regard unauthorized employment as a bar to adjustment of status, and instead, the Act means to specifically exempt aliens who would otherwise be barred from applying for adjustment of status because of unauthorized employment.

Thus, the Court held that an alien who is eligible for adjustment of status under 245(i) is not barred under 245(c) because of unauthorized employment and that the exception in 245(k) applies under 245(a).

Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010).

The short answer, YES, if it relates to a procedural immigration matter and not expressly prohibited by a statute,  it may be reviewed as held in the January 2010 Supreme Court decision of Kucana v Holder.  cf 130 S. Ct. 827, (2010). This by no means implies that the Albanian immigrant Agron Kucana will ultimately prevail in his motion to reopen his removal proceedings.  The Supreme Court merely reversed the lower court decision against judicial review and remanded the case for further consideration consistent with the Supreme Court’s decision.

Agron Kucana arrived in the United States under a three month Business Visa, he then applied for asylum, however he OVERSLEPT and arrived fifteen minutes after his hearing and was therefore ordered removed in absentia.  This saga brings up many important factors in immigration law, including congressional intent, executive discretion and the court’s ability to or in some cases the court’s inability to review.  This inability to review is often unique in immigration matters as the congress has nearly plenary power to create immigration law and in many cases can prohibit judicial review.

Click here to read the law and rationale that the Supreme Court used to reach their decision.