SATURDAY, MARCH 10, 2018
JIM SILBERNAGEL: Hardly a day goes by where you don’t hear storied about illegal immigration in the United States. How does that impact you if you’re an employer? How do you keep yourself out of trouble? Joining us today is Steve Berman – who concentrates his practice as an attorney in immigration and nationality law, and he assists corporate clients at maintaining compliance with US immigration laws, and he is also a professional member of the American Immigration Lawyers Association – to shed some light on this very valuable topic. Welcome, Steven.
STEVEN: Thank you.
JIM: It’s great to have you as a guest. I have never had an immigration attorney on before. I know you belong to an organization of immigration attorneys. Something that I’ve run into in my own practice is, I have a lot of clients that are small business owners and dealing with the complexities of dealing with immigrant workers. There’s a – I don’t know if it’s new, but – importance of compliance with the Immigration and Nationality Act, I think, is something that you, as an attorney, help clients with, so what are things employers need to know when deciding to hire anyone regarding the Immigration and Nationality Act? What is that?
STEVEN: Sure. Let me take a step back to the first thing you said about the newness of the law. In a way, the law’s not new. It came up under the Reagan administration under the 1986 – they call it IRCA – Immigration Reform and Control Act. Under those provisions, there were consequences for employers for hiring foreign workers and an obligation to collect certain documents to verify their authorization. That was very new back then. In effect, it deputized private citizens and companies, on behalf of the US, to police the immigration system. That’s what it really did. That’s what it was intended to do, so that changed our roles in how we handle hiring people. However, these provisions have been basically dormant. Through virtually the entire Bush administration, it was practically not enforced to any serious extent. There has been a big increase in enforcement under the current administration that’s been their focus, while the huge raids of the agri processors in Iowa and some other places in Kentucky – the big agricultural places – seem to have fallen off. I think they brought very bad press to the government, and people don’t like giant raids and having people handled in the equivalent of cattle cars. It makes extremely bad impression on the public. What they’ve focused on lately is what they call paper raids. They notify a company they’re doing an audit. That’s a lot quieter. It can have a very big effect, and there’s a danger of extreme financial consequences if there’s a large number of workers, but it’s not the kind of dramatic raids that there were back at the beginning of the current administration. That’s the status of enforcement, and that’s why it’s – relatively speaking – a new issue, because of the focus on enforcement and a focus on employers and their obligations. The basic thing an employer needs to know is when they’re hiring a worker, they’re going to have to set up a file. They’ve got a system. It’s called at I-9 file. There’s a couple of things to comply with that, the I-9 file: Number one, you’ve got an initial verification that the person who you’re hiring is authorized to work, and we’ll get back to that, because you might think, from that point, that you need to screen people in advance and, in fact, you’re not allowed to screen people in advance. This comes after you hire them. You initially verify their authorization. In some categories, the authorization terminates any need to re-verify it, and finally there’s document retention. If you’re keeping copies of the documentation, that needs to stay there in a permanent record. The law also prohibits discrimination. On the one hand, while deputizing employers to enforce the Immigration Act, on the other hand, the obvious concern was, people will stay on the safe side and not hire anyone who has an accent or who looks different in any way, and that’s not something we want to do in this country. We didn’t want to do that then, either, so the law has a prohibition against discriminating based on national origin or citizenship or acquiring documents other than those that are specified, and we’ll get into the specifics of that. So, you’ve got the two sides, both of which are enforced and both of which have a financial liability that could be lingering in there for years and years and can add up; so it’s an ongoing concern and the best bet is to comply with it and to either have outside auditors to review your I-9 process and review the files, or have an internal backup system to make sure that it’s done right, because this is a potential liability that’s hanging out there. It can be hanging out over a company for a long period of time.
JIM: So, how does an employer verify that someone is authorized to work?
STEVEN: There is a form. The form itself tells you what documents to look for, so there’s no need to make any calls. There’s no need to hire a private document examiner. You’ve got a list of documents. You’ve got a list A, and you’ve got a list B and C, basically. It’s on the third page of the form. You can find the form on uscis.gov – that’s the Department of Homeland Security’s own website – where they’ve got a form section. At the top of the page, there’s a horizontal line, and one of them is for forms. It’s a form you can find. There’s also various electronic versions of it that are sold commercially. If you go through the form and if you go through page three on the form, you check for the things on that list. The thing is, if you’ve got a list A document, you’re done. In other words, a US passport, US birth certificate, you’re done. The person is authorized to work; nothing else to talk about. If you’ve got a driver’s license, well, that’s not enough, right; so driver’s license may tell you the person’s identity, but it doesn’t tell you whether or not they’re authorized to work, so the driver’s license plus certain other documents would be sufficient to determine that a person is authorized to work, and those would be the ones on list C, so it’s a matter of going through the documents and seeing them and personally verifying that they’re there, but whoever the agent is that’s verifying them to personally see them and verify that they do exist – the required documents – fill it out, and sign it.
JIM: Now, one thing I’m a little bit concerned about is, you were talking about the antidiscrimination rules within the framework of making sure you don’t have an illegal alien working for you or someone who doesn’t have the right to work; that seems like walking a tightrope. How do you protect against that? Explain a little bit about the discrimination rules and how they’re differentiated from making sure someone is properly documented to work?
STEVEN: Sure. There’s two basic rule. Number one: Document abuse, and it comes up. An employer sometimes demands specific documents, not the ones that are listed on the I-9 form. They say, we’ll take your green card – and only your green card – and if you don’t have a green card, you’re not authorized to work. Well, what if you’re a US citizen? That’s ridiculous; or, what if you’re an asylee, or you’re here on a work-based visa, or you have an employment authorization card, or many other things that would verify that you are allowed to work? Well, the employer can’t specify, I want this document, or I want a different document that isn’t even on the list. If they do that, it’s discriminating against people based on their national origin, and you can’t do that, so if an employer does that, it’s very simple. The rule is like this: Never request more or different documents than an employee chooses to present provided those are documents that are presented to meet the I-9 compliance requirements. If the employee picks these documents, and they’re on the list, and it shows that he’s compliant, that’s the end of the inquiry. The form is completed. Your job is done, and if you demand more, you’re engaging in discrimination. Remember, this person’s already been hired. Now, if you’re going to terminate their employment because they didn’t give you documents based on a rule that you, yourself, made up, that’s discrimination. You violated the Act. Getting back to the point about them already being hired, you’re not allowed to prescreen, so here’s what you do. When you’re reviewing applicants for employment, you’re supposed to review their qualifications, their experience, training, education, and their postural merit. You’re not supposed to use the I-9 process to prescreen them, so when you decide to hire people, in a way, it is common sense, but since it happens all the time, sometimes employers think that it’s a good practice. It’s a bad practice, and it’s not allowed. Don’t use the I-9 process to prescreen them. Choose the people that you think you want to work for you based on their qualifications. Once you’ve hired them, then you go through the I-9 process.
JIM: I think that really helps a lot. What happens if you discover afterwards that someone; maybe they already started working with you – or whatever – but somehow, it comes to your attention that they’re not properly documented and don’t have the right to work? I know here, locally, we had Palermo’s Pizza; made a lot of news when they found out the majority of their workers were not properly documented. How do you handle that?
STEVEN: Sure, that was a very interesting case, because then you have yet a third law that comes into place, and it’s not an immigration law. You know the United States has some very detailed, highly regulated rules about labor relations, and if a company is organizing a union, you’re not allowed to punish them for doing so by terminating workers. Now, the Palermo case is interesting. I don’t know if we want to get into it too much. I wasn’t personally involved, and I don’t want to say the wrong thing either, because it’s a real and an ongoing case that’s on appeal, but the issue is something along these lines: He’s got workers that are organizing and setting up a vote to unionize at exactly the same time that there’s an investigation and some unauthorized workers. The employer gets notified of a list of workers that apparently are not authorized. Now, an employer can, and should – they don’t want to lose all their workers; they’re out of business – give the person an opportunity to demonstrate that they actually are authorized. For example, you get a letter from the Social Security Administration that they call a no-match letter, and it says this number associated with this worker doesn’t match our records. Now that could happen a lot, because some significant percent of Social Security’s records have mistakes in them. There is some misspelling in the name, the person got married and changed their last name, or it’s just a mistake. There’s something along – I don’t remember – one to five percent, but more than a negligible amount and for a large company, it’s going to happen. It wouldn’t be reasonable to fire those people without giving them a chance to get it corrected, so an employer is not allowed, knowingly, to hire an unauthorized worker. What does it mean to be on notice? Well, you can be on notice that there might be a problem but not know for sure that there is a problem. Then, you’ve got to act reasonably, so if you get a no-match letter, what you should do is give the person a chance to verify their status and to come back to with the appropriate documents. If you know for certain that there are fraudulent documents, and the person has no status here, they’re not allowed to work for you for even one day. By the same token, are you obligated for any specific amount of time to get those documents? No, not really. You’re not really obligated, so that was the interesting questions with Palermo. You’ve got workers that are organizing, and a company that might have wanted to give their workers a chance to re-verify or explain any discrepancy, but they weren’t obligated to, and at the same time they want to vote on unionizing, the company says well, you’re here illegally, and we’re under investigation. You can’t be here. On the one hand, they’ve got an investigation. You’ve got Immigration saying, these people can’t be here. That means they can’t be here even another minute. On the other hand, you’ve got the National Labor Relations Act that says you can’t terminate workers that are organizing. What are you supposed to do then? So, very interesting question. That’s a question, really, of labor law more so than immigration law, but it comes up. Suppose there’s no organizing going on. What are you supposed to do? I can remember a certain businessman coming to me. Every single one of his employees – it was in the food industry; it seems to always be in that industry among certain others – got a social security no-match letter. If he terminates them, he is out of business. What do I do? The best answer is, give them the opportunity to explain the discrepancy. You cannot knowingly continue to hire somebody who is in the United States without authorization. What’s a reasonable amount of time? Maybe 30 days, maybe 60 days, maybe 90 days. Longer than that? Probably not, but there isn’t any rule. There were proposed regulations that came out on that in 2006, and they were retracted, but it’s somewhere along those lines and it’s a matter of, you are encouraged to use common sense when it comes to that; at this point, until there are regulations.
JIM: We’re almost out of time, and I’m going to take a quick break. When we come back, let’s talk about if you do have a company and you want to hire a foreign national, what steps you need to take; so please stay tuned.
JIM: Welcome back, as we’re visiting with immigration attorney Steven Berman of Milwaukee, Wisconsin, talking about the myriad of different choices and obligations an employer has when dealing with foreign workers. Boy, before the break, we were talking about a couple of situation where really, you’re almost between a rock and a hard place, so it’s really important to be on top of this stuff from the beginning to make sure you understand the rules, because you could trip over yourself trying to follow the spirit of the law and maybe get tripped up in the letter of the law. Before the break, we talked about that, but let’s switch gears now and talk about, what if you do want to hire a foreigner? What does it take to have somebody come to work for you from outside the United States? What kind of documentation do you need, and is there something that you, as a business owner, can do to help facilitate someone you’d like to hire that is not a US citizen?
STEVEN: There certainly are things that you can do as far as the recruitment itself, but we’re not going to get into that, because it’s a separate area, but in the process of doing a recruitment, there are many businesses that will recruit overseas and bring people in on different types of visas. Years ago, there was a visa that doesn’t exist anymore that brought in primarily nurses from the Philippines because of a shortage of nursing, and you’ve got recruiters that bring them, and they come in on that visa. Agriculture; its’ the H2, so that’s the temporary worker visa that recruiters go to Mexico and elsewhere and bring in large numbers of workers into their agricultural business to be here six months at a time, and it’s a process that works well for large-scale companies that do a large recruitment because for all of those jobs, you need a verification from the US Department of Labor that there is a shortage, so going through that process is the way that many of those types of companies will do it. The high-tech companies are going to be doing H-1Bs. They’re going to be recruiting from the student graduates. They’ve got one years of work authorization after they graduate with an extension for what they call the STEM occupations; Science, Technology, Engineering, Mathematics. These professions get additional. They get a work authorization after they graduate, and they find employers. The employers hire them, and if they like what they’re doing, they file the change, typically, to an H-1B. There’s several other types also. Up here in Wisconsin, many of the resorts use a very popular visa – a J-1 visa. These also recruit recent graduates overseas to take summer, seasonal, other types of often-recreational jobs at many of the resort parts of the United States. As far as the immigrant visas go, people who have a master’s degree and higher, that immigrant visa is available. If you can demonstrate there’s not enough US workers to the Department of Labor, you can file an immigrant visa petition for those individuals. Often, people are eligible to immigrate based on their family; kind of go through an example. It just came up yesterday. I think it’s very illustrative. I’ve got a client who was granted legalization back in the Reagan are – back in the 80s – and he filed petitions for his family – his wife and six or so children in Mexico, it happened to be – to come to the United States. Unfortunately, his oldest son turned 21 by the time the visa became available, so his wife and all the other kids but the oldest all immigrated, and he had to stay back. The family refiled for him, and this, that, and the other went wrong. We made all kinds of arguments. We were able to preserve and get back a priority date from 1995. I’ll explain what that means. There’s a backlog of visas when you turn 21. They’re not available. You no longer an immediate relative. The visas right now for a son of a US citizen – an unmarried son – who is over 21; they will process you in September if you filed before June of 1994, so we had a great victory. We got his approval backdated to 1995. After nearly 20 years of waiting, the visa – even with a great victory of winning and getting a backdated approval notice 19 years – it’s still not available. The whole family immigrated to the United States almost two decades ago – one child, by happenstance – had turned 21. He got separated for a generation or longer from the whole rest of the family. Also, he is still single. Had he gotten married, the visa would have been void, and he would never be able to immigrate based on that visa. He’s separated permanently.
JIM: Boy, these stories are just examples of why we need to come up with a solution. I mean, we hear in the news, all these different things. I had no idea what it’s like on the ground behind the scenes, so obviously, you’re able to help a lot of people get through the myriad of paperwork and regulations both on employer’s side as well as a non-US citizen side. I know from your biography, you belong to the American Immigration Lawyers Association. If somebody had questions or needed to find an attorney, obviously, you’re a group of attorneys that focus your practice in an area to help with these kinds of issues. How does someone find an attorney that has that background?
STEVEN: Sure, I would recommend their website, AILA.org, as one resource to go to. Also, simply checking the local directories, people will have themselves listed as practicing immigration law. People here in Wisconsin, there is no such thing as specializing in immigration law, because they generally don’t recognize specializations. There are a couple of states, like California, that have a separate specialty for it. I don’t know if they take a test or what, but they do have something that’s called a specialist in immigration. Elsewhere, you’re simply not allowed to say you’re a specialist in immigration. You can say, my practice is limited to immigration law, so if you can look for somebody who is an immigration practitioner like that, usually it will be in a big city or a city that has a port of entry. There are large parts of the country, especially rural areas, that there are no immigration law practitioners at all. You’re not going to find anybody, or worse, you’ll find somebody who dabbles in it, and you’ll see just ridiculously bad work; like, for example, a case I saw yesterday. I’ve got a foreign national. He has an approved immigrant visa petition, but his lawyer is somewhere in the middle of Ohio; doesn’t realize that he’s in removal proceedings. He can’t file for the green card with the Immigration Service. You’ve got to the court. Well, that’s very basic. Someone who doesn’t practice immigration law all the time wouldn’t know that, but to anyone who does practice, it’s very basic, and they’ll make big mistakes that will have big consequences to a person being able to stay in the United States. If a person falls out of status for even a short amount of time, they can’t change status; they can’t adjust status. Their case can be ruined. It could be the end of their immigration, so little mistakes can be a big deal. It’s important to get somebody competent at it. Trying it on your own or just hoping the HR specialist knows how to do it can be playing with fire, and it’s simply very risky; or worse, going to a notary outside of the United States is the equivalent of a lawyer. A notary in the United States can verify your signature, and they can charge up to $3 to $5 or so to do so. They’re not qualified to practice immigration law, and if they do, a person will often get themselves into serious problems and if they’re lucky, it might work, but they haven’t done themselves any favors doing anything like that.
JIM: Well, Steven, we’ve come to the end of our time together, and I really appreciate the time you spent. I know I’ve learned a lot. I’m sure our listeners have learned a lot. What you express is our theme. Don’t go these things alone. Don’t try to do these things yourself. Work with a team of professionals, whether it’s your financial planning, insurance planning; whether you have business planning, especially if you get in the area of hiring workers, you certainly need to know the rules in this area, it could cost you not only time and down time potential if you don’t have a labor force but also, the fines as well. Thanks again, Steven.
STEVEN: Very welcome.
JIM: Thanks for joining us this week, and tune in again next week as we explore another phase of the Real Wealth process; and remember, if anything you’ve heard in today’s show you would like to get information about, contact us! Make sure to share this with your friends!