Immigration Compliance & Enforcement - At the Crossroads of Politics & Practicalities

On June 11th, the U.S. Senate voted to move the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744), the comprehensive immigration reform bill drafted by the “Gang of Eight,” to the floor for debate, where it is expected to face dozens of amendments in the coming weeks. The final vote to begin debate on the landmark legislation was 84 in favor and 15 against. Below are some of the key issues that this bill faces on its way to a final vote in the Senate:

Border Security: Senator John Cornyn (R-TX) has signaled support for implementing border security triggers – including a 90% apprehension rate of illegal border crossings – before putting undocumented immigrants on the path to permanent residency. Senator Cornyn’s amendment would also introduce a biometric exit system as well as a nationwide electronic employment eligibility verification program. The measure has already stirred opposition from Democratic senators and immigration advocates, who liken it to a “poison pill” that will indefinitely delay the citizenship prospects of the estimated 11 million undocumented immigrants already in the United States.

Senator Marco Rubio (R-FL), a member of the “Gang of Eight,” has also indicated that he may not be able to support the legislation in its current form without strengthened border security measures. To this end, Senator Rubio and his colleague, Senator Tom Coburn (R-OH) may propose an amendment that would transfer the responsibility for drafting, but not enforcing, a border security plan from the U.S. Department of Homeland Security (DHS) to Congress. Several other drafters of the bill, including Senator Charles Schumer (D-NY), expressed a willingness to include border security triggers so long as they are “both achievable and specific.”

Taking a more expansive approach, Senator Rand Paul (R-KY) plans to offer an amendment that would require Congress to draft and enforce a border security plan, as well as to vote on border security every year for the first five years after the bill takes effect. Democratic senators and immigration advocates oppose this measure, citing unpredictability and partisanship as future hurdles to implementing a path to citizenship.

Taxes: Senator Jeff Sessions (R-AL) plans to re-introduce two amendments that would require families to provide a valid Social Security number to receive a child tax credit and deny the earned-income tax credit to immigrants with temporary legal status, respectively. Both measures previously failed in committee on a party-line vote.

Senator Orrin Hatch (R-UT) is also expected to offer an amendment that would require immigrants to demonstrate that they have paid back taxes and remained current on present obligations as they progress toward citizenship. Senator Hatch may also introduce a measure that would ban immigrants who are legal permanent residents from receiving Affordable Care Act subsidies for five years.

Guns: Senator Richard Blumenthal (D-CT) may offer two amendments restricting access to guns for undocumented immigrants. One of the provisions would eliminate the loophole that allows certain immigrants to purchase firearms, while another would require the Attorney General to alert the Secretary of Homeland Security when an undocumented immigrant or temporary visitor to the U.S. attempts to buy a firearm. Currently, both categories of individuals are legally barred from purchasing firearms.

Same-Sex Benefits: Senator Patrick Leahy (D-VT) is weighing whether to revive an amendment that he reluctantly declined to introduce in committee due to the opposition of his Republican colleagues. The measure would permit U.S. citizens in state-recognized same-sex marriages to apply for permanent residency on behalf of a same-sex spouse, a benefit that is currently afforded to heterosexual couples only.

When Immigration and Customers Enforcement (ICE) decides to perform an audit of a company’s Employment Eligibility Verification forms (Form I-9), they will issue a Notice of Inspection (NOI). Providing a careful response to an NOI is critical as it lays the platform for communicating, negotiating, and oftentimes settling with ICE. Following the recent decision from the Office of the Chief Administrative Officer (OCAHO), confirming that failing to timely prepare a Form I-9 constitutes both a serious and costly violation, it is important for employers to be vigilant of the fact that ICE continues to conduct I-9 audits. The follow tips are recommended when responding to an NOI.

• Plan: Have an internal plan in place relating to communication with ICE and dealing with receipt of an NOI. Administrative personnel/receptionists, who are the first point-of-contact at a place of business, should be required to immediately contact the appropriate individual(s) in the event an ICE officer visits the company and issues an NOI. It is recommended that only management or the HR Department should communicate with ICE, noting that any information provided to an ICE officer while serving the NOI could be used against the company later in the audit process. If your administrative personnel/receptionist is authorized to accept and receive an NOI, it is crucial they notify management immediately as the NOI must be responded to within the three days (72hrs) as provided by the law. Having a proper plan in place helps alleviate the panic that occurs when an ICE agent shows up at your place of business.
• Counsel: Responding to an NOI and communicating with ICE is a complicated process. If not already represented, contact immigration counsel immediately upon receipt of an NOI. Responding to an NOI is a serious process and should not be taken lightly. Although the ICE agent delivering the NOI may seem friendly, they have been known to lead employers to inadvertently make adverse statements which are used against the employer later in the process. The NOI will allow the company three business days to return the requested documents to ICE. Although an employer may believe that its I-9 forms and other documentation are in order, an employer should never waive the three day period allowed to produce the forms. Immigration counsel should conduct an audit of the I-9 forms and make any corrections, where permissible, prior to turning over the documentation to ICE. An immigration attorney who is skilled in responding to NOI’s and working with ICE, will be able to assist a company in both auditing and pinpointing other mitigating factors.
• Communicate: Communication with an ICE agent should be professional, honest, and tactful. Remember, no matter how pleasant the ICE agent acts, this is a serious matter and not a friendly exchange of information and documentation. If the employer is uncertain concerning any information contained within the NOI, it is appropriate to immediately seek clarification and confirmation from ICE, keeping in mind the three business day timeframe. The employer’s attorney should be included in any communication with ICE.
• Document: It is equally important to keep an accurate record of anything turned over to ICE. An ICE audit does not actually take place at the employer site, rather it is handled at the ICE field office. The company should make a complete carbon-copy of all I-9 forms and supporting documentation provided to ICE, and request a receipt from the ICE agent. It is further recommended that the employer document any verbal communications with ICE in the form of an email, letter, or written summary.

A recent decision from the Office of the Chief Administrative Officer (OCAHO) serves as a good reminder to make sure your company’s Forms I-9 are in order. In U.S. v Anodizing Industries, Inc., the OCAHO reviewed an Immigration and Customs Enforcement (ICE) complaint that a Los Angeles metal finishing factory had violated 8 USC §1324a(a)(1)(B) by failing to timely prepare Forms I-9 for its 26 employees. The decision confirms that failing to timely prepare a Form I-9 is a serious violation and that each failure constitutes a separate violation. Because the company committed a substantive violation 26 times, ICE sought a fine of more than $25,500. That’s almost a $1,000 fine for each Form I-9.

While the OCAHO reduced the penalties as a matter of discretion in this case, it’s important to think about what happened to this company in a broader sense. If a company is completing its Forms I-9 incorrectly, that same mistake is likely to appear on every Form I-9 the company completes. In the event of an ICE I-9 audit, if those mistakes turn out to be violations, that company faces a penalty for every mistake. Increased worksite enforcement is sure to accompany any immigration reform that comes out of Congress this summer. It’s important for companies to look over their Forms I-9 and make sure they are being completed timely and correctly. Contact the Greenberg Traurig immigration team today for assistance.

On May 30, 2013, the U.S. Secretary of Homeland Security issued an 18-month extension of Temporary Protected Status (TPS) for eligible nationals from El Salvador, allowing applicants to obtain renewed Employment Authorization Documents (EADs) valid from September 10, 2013 to March 9, 2015. Current Salvadoran beneficiaries must re-register for TPS status during a 60-day re-registration period that will end on July 29, 2013 in order to receive new EADs with a March 9, 2015 expiration date. In the interim, the U.S. Citizenship and Immigration Service (USCIS) has issued an auto-extension of current TPS El Salvador EADs expiring on September 9, 2013 date for an additional six months through March 9, 2014. Employers should take note to update Forms I-9 for Salvadoran national TPS employees who present EADs bearing a September 9, 2013 expiration date.

The U.S. Secretary of Homeland Security may designate a foreign nation for TPS due to conditions that temporarily prevent its nationals’ return, including ongoing armed conflict, environmental disaster, or other extraordinary or temporary conditions. Eligible TPS beneficiaries are not removable from the U.S. and may be granted work and travel authorization during a designated period. In order to apply for an extension of TPS status, eligible beneficiaries must timely submit a Form I-821, Application for Temporary Protected Status, and a Form I-765, Application for Employment Authorization.

The 2013 Chambers USA Guide includes 186 Greenberg Traurig attorneys in 33 practice areas, including the Immigration Practice and Corporate & Securities Practice that received “Band 1” placement in statewide and/or nationwide rankings. Attorney Kate Kalmykov was also recognized as “Up and Coming” in Immigration law, and Martha Schoonover and Laura Reiff received “Band 2” ranking for Immigration law. Additionally, Greenberg Traurig received the Chambers USA Award for Excellence in Real Estate during the Chambers and Partners USA 2013: America’s Leading Lawyers for Business awards ceremony held Thursday, May 23, 2013 in New York.

For more information and full listing of GT rankings for the 2013 Chambers USA Guide click here.