TOP 10 IMMIGRATION ISSUES OF 2016 - LEYLA MCMULLEN MDIVANI CORPORATE IMMIGRATION LAW FIRM RETURN TO GREEN 2016 FRIDAY, APRIL 22, 2016 | 9:30 AM ...
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Top 10 Immigration Issues of 2016 Leyla McMullen Mdivani Corporate Immigration Law Firm Return to Green 2016 Friday, April 22, 2016 | 9:30 am - 4:00 pm Stinson Leonard Street LLP Lecture Hall | 104 Green Hall
2016 Immigration Law Update
Leyla McMullen
Business Immigration Attorney
Mdivani Corporate Immigration Law Firm
(913)317-6200
LMcMullen@uslegalimmigration.com
I. Immigration – How is it relevant?
A. Politics
1. Immigration is a hot topic with the upcoming election
a. Securing borders, providing seasonal work force, high skilled
workers, executive action blocked by 5th circuit
b. DACA - In June 2012, DHS implemented Deferred Action for
Childhood Arrivals
1) Who came before they were 16; lived continuously in the US for
at least 5 years & present in the US on June 15, 2012
2) NOT an amnesty, NO pathway to citizenship, NO status – it
just allows DHS to use prosecutorial discretion with certain
young people who are undocumented & have no criminal
history
3) Granted in 2 year increments
4) Must pass a background check
5) Applicants must request deferred action
6) Applicants may qualify for temporary work permits
7) 1.2 million qualify
8) About 636,000 applications have been approved through 2014.
9) See Memorandum from Janet Napolitano, Sec’y, Dep’t of
Homeland Sec., to David Aguilar, Acting Comm’r, U.S. Customs
and Border Prot., et al. 1 (June 15, 2012) (the “DACA Memo”)
c. DAPA – Deferred Action for Parental Accountability - In November
of 2014, DHS expanded DACA to include Deferred Action for
Parents of US Citizens & Lawful Permanent Residents & proposed
to extend DACA to 3 year increments, and changed the eligibility
cut-off date to January 1, 2010
1) Supreme Court will possibly hear the case this Summer
2) Of the 11.3 million undocumented, 4.3 million would be eligible
d. Refugees
1. Today’s Refugee laws: Refugee Act of 1980: incorporated the
United Nations 1951 Convention and 1967 Protocols relating to
Refugees. US became a party to it in 1968
2. A refugee is someone who is unable to return to this home
country because of a “well- founded fear of persecution” due to
race, membership in a particular social group, political opinion,
religion, or national origin
3. Procedures: Vetted abroad – rigorous process. According to the
Department of State, it takes from 18-24 months
4. Europe – does it differently – very lenient system in Europe
5. If our country does not want to take in Refugees, then Congress
needs to change the law
e. Economics
1. Work visas – shortage of workers for seasonal jobs
2. Shortage of workers for high skilled & technology fields
3. Shortage of visas available for both seasonal and high skilled
II. Agencies Involved
A. Department of Homeland Security (DHS)
1. United States Citizenship and Immigration Services (USCIS)
2. Customs & Border Patrol (CBP)
3. Immigration & Customs Enforcement (ICE)
a. I-9 Audits
B. Department of State (DOS)
1. Consular Processing
C. Department of Justice
1. Office of Special Counsel (OSC)
2. Attorney General’s Office
3. Criminal Prosecutions
4. Discrimination claims
D. Department of Labor
1. H-1B Visas
2. Employment-based green cards
E. INS NO longer exists
III. Vocabulary
A. Citizen: Someone born in the US or naturalized
1. If you are not born in the US, you can become a Citizen but you first
must become a Lawful Permanent Resident
B. Permanent Resident: Someone who has applied for and received the
indefinite right to work and live in the US. Usually based on family or
employment
1. Family Example: Marrying a US Citizen or Lawful Permanent Resident;
a US Citizen adult petitioning for his parents, brothers/sisters.
a. May take a very long time
1) See copy of Visa Bulletin for an idea on backlogs
2. Employment-based example: Student comes on a student visa, gets
an engineering degree, starts working as an intern for an engineering
firm. Firm wants to hire him. Firm usually applies for a temporary work
visa for professionals (H-1B visa); then applies for employment based
green card.
a. Again, this can take a very long time – several years
1) See Copy of Visa Bulletin
C. Someone with a work visa
1. Could be a seasonal worker- H-2B. IE: Roofing, landscaping …
a. Note that those on work visas can only work for the employer
who sponsored his/her work visa – the visa belongs to the
employer
b. Seasonal work visas are limited to having the worker only work
for the employer who applied for the visa
a. Could be a skilled worker – H-1B. IE: Statistician, Professor,
engineer
1) Job must require a College degree
2) Also as with seasonal workers, the visa belongs to the Employer
3) Very limited numbers of visas available
D. Someone on Deferred Action
1. Someone granted ability to live and work in the US without being
given status
a. See DACA & DAPA above
b. Could be someone with a U-visa
1) Victim/witness of a crime assisting law enforcement
IV. Important Considerations for General Practitioners
A. Effects of Criminal Plea Deals
1. Padilla vs Kentucky, 559 US 356 (2010.)
a. Lawful Permanent Resident of 40 years faced deportation after
pleading guilty to a drug distribution charge.
b. 6th Amendment ineffective assistance of counsel claim upheld. His
lawyer failed to advise him of deportation as a possible
consequence to his guilty plea.
2. Crimes that may cause Deportation
a. Crimes of Moral Turpitude - not well defined
1) Some examples: fraud, larceny, spousal abuse, aggravated DUI
or DWI, tax evasion, child abuse
b. Aggravated Felonies
c. Other specific crimes
d. Consult an experienced criminal immigration attorney
B. Difference between having Status in the US vs. having a Visa
1. See Section III above. Someone could have a valid visa, but still be out
of status
2. This situation could come up with a business client – IE: Client says, I
am hiring someone with a visa, so I’m good right? They show you the
person’s visa stamp on their passport.
a. Check to make sure that visa does not belong to another employer.
A common occurrence is that for example a temporary worker
comes to the US on a work visa to work for Company A. Then he
quits, and goes to apply for work with Company B. Company B
sees a valid visa stamp and hires the worker. However, that worker
belongs to Company A, so that worker is now NOT authorized.
C. Notario Fraud
1. Be aware that there are individuals out there charging less money for
legal services, but they are not lawyers. They often file immigration
forms for people who do not qualify for immigration benefits. Other
times, they file things incorrectly for people who do qualify & end up
causing more harm. Be generally aware of anyone who says they have
a green card pending and they hired a “notario” to file the applications
for them.
D. Bars to Readmission
1. Certain actions can trigger bars
a. Ie: If someone is here illegally, he/she leaves the country, and
comes back
E. Timing Issues
1. DACA – for example has very specific time lines for qualifying
2. H-1B & H—2B Visas also have very specific time lines for filing
a. Visa numbers are gone on the first day of filing
3. Temporary Protected Status (TPS)
a. Only has a 3 month window to file for renewals
V. Important Considerations for Business Lawyers
A. Immigration Compliance in general
1. The I-9 Form is more than just a form. Compliance requires full
commitment by employers to comply with regulations
2. I-9 violations can carry monetary fines, forfeiture of business assets &
even jail time for owners, managers, employees in hiring chain
3. Applicable Law IRCA/RICO – applies to ALL Employers
4. Targeted Industries
5. ICE Best Practices
a. Annual Audits
b. Annual Training
c. Written Plans, Policies, & Procedures
d. Use of E-verify
e. Use of SSNVS
f. Contractor/Subcontractor Compliance
g. CONSISTENCY
6. Keep in mind that ICE will sometimes do an audit just to make some $
7. M-274 for I-9 guidelines
8. 2009 Internal Worksite Enforcement Memo:
a. The criminal prosecution of employers is a priority of ICE’s worksite
enforcement program and interior enforcement strategy.
b. ICE is committed to targeting employers, owners, corporate
managers, supervisors, and others in the management structure of
a company for criminal prosecution through the use of carefully
planned criminal investigations.
c. In this context, “employer” refers to someone involved in the hiring
or management of employees. This includes owners, CEOs,
supervisors, managers and other occupational titles.
9. Case Examples: (from ICE press releases)
a. Wei’s Super Buffet
1) Based in Olathe and KC, MO
2) Owners, family members, & employees went to jail
3) Charged with employing and harboring
4) Simply giving an undocumented person a job constitutes
harboring
5) Max of 10 years in federal prison plus fines
b. Advantage Framing
1) Based in Spring Hill, KS
2) Husband and wife owned construction company
3) Used mainly subcontractors
4) Owners and managers were charged with harboring
5) Agencies involved: DHS & IRS
a) Note that ICE or DHS often is not the first agency asking
questions – It may start with an IRS or DOL letter – IRS, DOL, ICE,
DHS, they all share information and work together
6) Each spent one year in jail – they let the husband and wife go to
jail different years, because they had children
c. Broetje Orchards, LLC
1) Biggest apple orchard in the US – based in Washington
2) They had over 900 undocumented workers
3) They signed a non-prosecution agreement but had to pay $2.25
million dollars within 30 days
4) ICE press release mentioned that they decided not to shut down
the orchard because they were considering what was in the best
interest of the town
d. Mike Millenkamp Dairy Cattle
1) Iowa Dairy Farmer – In January of 2016, was sentenced to 3
months in jail – possible jail time was up to 10 years
2) Pled guilty to harboring
3) $250,000 in fines
4) As part of the Plea Agreement he has to give 2 presentations to
Statewide Farm Groups
e. Macys
1) Discrimination
2) Claims made by Lawful Permanent Employees that Macys was
asking them to reverify their green cards when their cards
expired
3) Macys paid $175,000 in civil penalties + $100,000 into a fund
for back-pay of employees
4) Macys was monitored by the government for 2 years afterwards
f. Target and Whole Foods
1) Charged with discriminating against authorized immigrant
workers
2) Complaints filed with DOJ by The Legal Aid Society –
Employment Law Center on behalf of 2 Latina workers who had
temporary protected status
3) Document abuse case
g. Abercrombie & Fitch
1) Abercrombie & Fitch outsourced their I-9’s to an outside. Even
though the outside vendor had made the I-9 errors, Abercrombie &
Fitch could not escape liability
2) They were fined over $1 Million
3) They did NOT find a single unauthorized worker
h. Abercrombie & Fitch, AGAIN!
1) Discrimination Issues
a. When applicants noted in their I-9s that they were not US
Citizens, Abercrombie & Fitch requested that they present a
Lawful Permanent Resident Card
(1) This is not allowed. Employees can choose which
documents they would like to present, as long as they
present a document from the list of authorized documents
for I-9 purposes
b. Civil penalties + a $150,000 fund + back wages to
employees of approximately $3,000 per person
c. Government monitoring for 2 years
B. H-1B Visa
1. For Skilled workers
2. High burden of proof
3. High demand in Tech Industry
4. Temporary in nature – H-1B visa does not grant permanent residence
or citizenship – but it can be used to keep the employee here legally
working for the employer while the employer files for Employment
based green card
5. There is a cap of 85,000 visas per year – so it’s a lottery system
a. Can be very frustrating for employers as well as for practitioners
1) Your job may qualify, your applicant may more than qualify, you
file a perfect case, and you don’t get approved. Simply because
your packet was not one of the ones picked to be considered
6. For Fiscal Year 2016 there were 233,000 H-1B visa applications filed
7. We need congressional reform in this category, NOT executive action
C. Employment based green cards
• Very long, complicated and expensive process
• Leads to permanent residency
• Must prove that there is NO minimally qualified US worker available
a. Requires advertising for the job position and proving why any
applicants are not qualified
1. Process starts with DOL, then moves to USCIS, and then to DOS
a. Once an employment based green card application is finally
approved, there must be an available visa number for the foreign
worker. See Visa Bulletin example:
1) The employment based category is the 3rd category. So, If I
want to hire a computer programmer from India, for example, I
will have to wait 12 years because there is a visa backlog for
employment based green card beneficiaries form India to April
1, of 2004.
D. Family Based Green Cards
1. Divided based on the relationship – See Current Visa Bulletin
a. Immediate relatives: Spouses and children of US Citizens – no wait
b. (F1) Unmarried sons & daughters of US Citizens
c. Second Category:
(F-2A) Spouses & children of Lawful Permanent Residents
(F-2B) Unmarried sons & daughters (21 or older) of Permanent
Residents
d. Third Category:
(F-3) Married sons & daughters of US Citizens
e. Fourth Category:
(F-4) Brothers & sisters of US Citizens
E. Employment-based Green cards
1. Process is long, difficult, expensive
2. But, allows for worker retention … unless, after they get their Green
Card, they quit and go work for someone else
3. Employer must prove there is NO MINIMALLY QUALIFIED AMERICAN
WORKER available
a. Must advertise, keep records of applicants, interviews, etc …
b. Must first file with Dept of Labor, then USCIS, then Dept of State is
the final stage (may have to leave the country and process through
a US Consulate abroad)
4. Standard of proof is very high
F. Pro-Bono Work1. VAWA: Violence against Women Act
a. The victim can self-petition
b. Lower burden of proof
2. U Visa
a. For victims of certain qualifying crimes
b. Only 10,000 per year4/21/2016
Immigration Law,
Quickly…
A SNAPSHOT OF THE BASICS OF IMMIGRATION LAW
Business Immigration
Attorney
Mdivani Corporate
Immigration Law Firm
Leyla McMullen
14/21/2016
Immigration: Relevant?
Politics
Refugees
Economics
Families
Today’s Presentation
Who: which agencies are involved
What: vocab of immigration law
Types of Immigration Law
Tips for the General Practitioner
Business Immigration Law in Specific
Pro Bono Efforts
24/21/2016
Who are the players?
Department of Homeland Security (DHS)
United States Citizenship and Immigration Services (USCIS)
Immigration and Customs Enforcement (ICE)
Department of State (DOS)
Department of Labor (DOL)
****No more Immigration and Naturalization Services (INS)
Citizen: Someone born in the U.S. or naturalized
What is what? Permanent Resident: Someone who has applied for and
Immigration Law Vocab received the indefinite right to work and live in the U.S,
based on familial relationship or employment
Without Status: Someone inside the country in violation
of the law. Person may be:
Undocumented‐EWI or
Out of Status
Deferred Action: Someone granted ability to live and
work in the United States without being given status
Ex. DACA/DAPA (?)/U‐Visas
34/21/2016
Types of Immigration Law
Business vs. Family vs. Humanitarian
• Who is your client?
• Standard of Proof
• Interviews?
• USCIS Trends
• Predictability?
Important Considerations for General Practitioners
1.Effects Criminal Plea Deals
(Padilla v. Kentucky)
2. Status vs. Visa
3. Notario Fraud
4. Bars to Readmission
5. Timing Issues
QUICK TIPS
44/21/2016
Attorneys Dealing with
Business should know
about Immigration
Compliance
o Much more than just a form
o Requires full commitment by
employers to comply with
regulations
I‐9 Compliance
IRCA/RICO
Universally Applicable
Targeted Industries
ICE Best Practices
Jail/Fines
54/21/2016
WHAT IS ICE LOOKING FOR?
Annual Audits
Annual Training
Written Plans, Policies, and Procedures
Use of E‐Verify
Use of SSNVS
Contractor/ Subcontractor Compliance
Consistency
2009
INTERNAL
WORKSITE
ENFORCEMENT
MEMO
Sss
Sss
sss
Ss
Ss
64/21/2016
Case Examples
Wei’s Super Buffet
Olathe, KS & Kansas City, MO
Owners, Family Members,
and Employees
Employing & Harboring
Max 10 years federal prison
Plus Fines
74/21/2016
Advantage Framing
Spring Hill, Kansas
DHS & IRS
Subcontractor Issues
Owners and Managers
Charges:
Harboring – 5 yrs & $250k (Each Count)
Broetje Orchards, LLC
Washington Apple Orchard
900+ Undocumented workers
Penalty:
$2 Million w/n 30 days
No Criminal Prosecution
84/21/2016
Iowa Dairy Farmer
Mike Millenkamp Dairy Cattle:
Several Unauthorized Workers
Harboring
Plea Agreement Requirements:
Engage in Ongoing Compliance
Pay $250,000 in fines
2 Presentations to Statewide Farm Groups
AND 3 months of jail time (out of 10 years
possible)
Macy’s
Discrimination
Claims by employees
DOJ—OSC
Re‐verifying Green Cards
$175,000 Penalties
$100,000 Back Pay Fund
Monitored by Gov’t for 2 years
94/21/2016
Abercrombie & Fitch
Technical I‐9 Violations
Outsourced I‐9s to Vendors
Cannot Escape Liability
Fines of Over $1 Million
No Unauthorized Workers
Abercrombie & Fitch…Again
Discrimination Issues
Requesting Green Cards
Civil Penalties +
$150,000 Fund + Back Wages to
Employees (~$3,000/person)
Monitored by Gov’t for 2 years
104/21/2016
Business Visas and Green Cards
Temporary work authorization used typically for those in skilled labor positions
H‐1B: Workhorse of Visas
Skilled workers
High Demand in Tech Industry
H‐1B Cap 85,000/Lottery
2016 FY 233,000 filed
Unpredictable Outcome
Need Congressional Reform, Not Executive Action
114/21/2016
Employment‐Based Green Cards
Long, arduous, expensive, frustrating
But… Allows for Worker Retention!
Must prove no minimally qualified
American worker is available
DOL then to USCIS then to DOS
Employment‐Based Green Cards
Visa Bulletin
Highly Political
Congressional Reform
Unpredictable
124/21/2016
Immediate Relative:
Spouses, Unmarried Children under age 21
FB‐1; FB‐2A; FB‐2B; FB‐3; FB‐4
Family‐ Consular Processing
Whole subsection devoted to international adoption
Hague Convention
Based
Green
Cards
Pro Bono/Humanitarian Cases
Immigration Law and VAWA –
self‐petitioning battered women
(usually)
Any Credible Evidence (Low
Burden)
Can STILL be Difficult to Prove
134/21/2016
Pro Bono /
Humanitarian
Cases
U‐Visa – victims of qualifying
crimes
Must Get Certification from Law
Enforcement
Limit on Availability
(10K per year)
Pro Bono/Humanitarian Cases
Musicians – in all stages of the
process
B1 Visas‐Single Performances
P Visas‐Performers
O Visa‐Extraordinary Musicians
H‐1Bs‐Professors
Green Cards!
Must support the arts!
144/21/2016
How is Immigration Present in Politics?
Executive Action Progress?
SCOTUS Granted Cert—Case will be heard this session
Injunction originally led by Texas Coalition
Moved up to 5th Circuit Court of Appeals
in NOLA
Business Immigration
Attorney
Mdivani Corporate
Immigration Law Firm
Leyla McMullen
154/21/2016
Questions?
MDIVANI CORPORATE IMMIGRATION LAW FIRM
WWW.USLEGALIMMIGRATION.COM
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