IMMIGRATION ENFORCMENT AGAINST EMPLOYERS IN THE TRUMP ERA. Presented to the Association of Corporate Counsel Houston, TX July 10, 2018

Transcription

1 IMMIGRATION ENFORCMENT AGAINST EMPLOYERS IN THE TRUMP ERA Presented to the Association of Corporate Counsel Houston, TX July 10, 2018

2 KEY ADMINISTRATION IMMIGRATION PLAYERS Donald Trump, President Stephen Miller, Senior Policy Advisor Jeff Sessions, Attorney General 2

3 THE ADMINISTRATION S IMMIGRATION FRAMEWORK Presidential Campaign February 2017 Speech to Congress The four pillars Relief for DREAMers Border security Abolish DV lottery End chain migration 3

4 TRUMP ADMINISTRATION S AREAS OF FOCUS Enhanced enforcement of immigration laws, including employment eligibility verification regulations, at the worksite Leveraging of immigration-related employment discrimination laws against additional tool against employers who hire foreign nationals on temporary visas Extreme vetting and other forms of increased scrutiny of employment-based visa petitions Elimination of certain categories of work authorization 4

5 POINTS TO PONDER Employers can incur significant penalty under laws prohibiting unauthorized employment without ever employing an unauthorized worker. Discrimination may not require intent but may be treated more like a strict liability offense by federal civil rights enforcers. A merit-based immigration policy under current Administration does not necessarily mean market-driven or employer-centric policy. 5

6 ENFORCEMENT AGAINST UNAUTHORIZED EMPLOYMENT New era of increased worksite enforcement & investigations under BAHA 4 to 5 times more I-9 audits In September 2017 ICE announces the imposition of a $95 million penalty against the Asplundh Tree Company, the largest fine ever imposed in a worksite case Enforcement focus still largely on paperwork mistakes 6

7 STATUTORY PENALTIES FOR HIRING UNAUTHORIZED ALIENS PENALTIES CRIMINAL PROSECUTION ADMINISTRATIVE SANCTION DEBARMENT Felony and Misdemeanor Hiring Violations Prohibits Federal Contracts 1-3 years Imprisonment, Fines, & Forfeitures Paperwork Violations Enacted by Executive Order on 02/13/1996 7

8 CIVIL PENALTIES PER UNAUTHORIZED EMPLOYEE (Violations Occurring After November 2, 2015) First Offense Second Offense Third and Subsequent Offense Minimum Maximum Minimum Maximum Minimum Maximum $548 $4,384 $4,384 $10,957 $6,575 $21,916 8

9 SUBSTANTIVE/UNCORRECTED TECHNICAL VIOLATIONS FINE SCHEDULE (Violations Occurring After November 2, 2015) % of Violation in Total Workforce First Offense Second Offense Subsequent Offense Up to 9% $220 $1,095 $2,191 10% to 19% $548 $1,315 $2,191 20% to 29% $876 $1,534 $2,191 30% to 39% $1,205 $1,753 $2,191 40% to 49% $1,534 $1,972 $2,191 50% and Up $1,862 $2,191 $2,191 9

10 ENHANCEMENT MATRIX FOR CIVIL PENALTIES Factor Aggravating Mitigating Neutral Business size + 5% - 5% +/- 0% Good faith + 5% - 5% +/- 0% Seriousness + 5% - 5% +/- 0% Unauthorized workers + 5% - 5% +/- 0% History + 5% - 5% +/- 0% Cumulative adjustment + 25% - 25% +/- 0% 10

11 PRESUMPTION OF KNOWLEDGE FROM SOCIAL SECURITY NUMBER MISMATCH Knowledge of mismatch may come from variety of sources: SSA decentralized correspondence (DECOR) letters IRS or state revenue agencies Private retirement fund managers Result of mandatory ACA (Obamacare) reporting Employers expected to resolve mismatch even with rescission of regulation in Inaction is factor to consider whether employer has knowledge of unauthorized worker. Catch-22: IER/NLRB/Courts consistently rule against employers who do take action. Best practice: Notify employee(s) immediately Require diligent follow-up Do not take adverse personnel action before final resolution Do not hold employee liable for government error/inefficiency 11

12 PUSH FOR MANDATORY ENROLLMENT IN E-VERIFY Currently voluntary (except where it is not) Federal contractors State and local requirements STEM extension Effective for matching name with information in SSA and DHS databases but ineffective in discovering identify fraud Fewer SSN mismatches Rebuttable presumption of compliance May lead to additional scrutiny by government Exposure to discrimination referral Beware of union and collective bargaining issues 12

13 IMMIGRATION-RELATED EMPLOYMENT DISCRIMINATION The antidiscrimination provisions of the Immigration and Nationality Act were enacted through the Immigration Reform and Control Act of 1986 (IRCA), and codified in INA 274B, 8 U.S.C. 1324b. Prohibited conducts include national origin and immigration status discrimination, unfair documentary practices and retaliation. INA 274B establishes Office of Special Counsel (OSC) to enforce anti-discrimination provisions. OSC became Immigrant and Employee Rights (IER) Section under DOJ Civil Rights Division at the end of Obama Administration. 13

14 WHY BE CONCERNED WITH IER ENFORCEMENT Anti-discrimination law has become a Trump Administration tool to protect U.S. workers by scrutinizing employers who hire, or contract for services provided by, foreign national visa holders. In spite of Trump Administration s priority, IER career staff remains aggressive in enforcement of 274B against employers who exercise caution to ensure a legal workforce, thus creating a quagmire for employers. These competing heightened enforcement priorities coincide with new 2017 regulation greatly expanding IER s investigative authority, statute of limitations to file complaint against employers, and definition of discrimination (without statutory basis). 14

15 RECENT TARGETS OF IER ENFORCEMENT Recent IER enforcement actions targeted employers who: Outsourced certain IT functions to consultant Offered visa sponsorship in job vacancy announcements Screen job applicants for long term availability based on immigration status Inadvertently reverified eligibility to work of permanent residents Failed to recognize acceptable but uncommon forms of employment authorization documents 15

16 CITIZENSHIP STATUS DISCRIMINATION PROTECTED PERSONS U.S. Citizen or National. U.S. Lawful Permanent Resident. Person granted Refugee status in the United States. Person granted Asylee status in the United States. A Special Agricultural Worker under section 210 or a beneficiary of legalization through an amnesty program under section 245A of the U.S. Immigration and Nationality Act. 16

17 AREAS OF EXPOSURE Many violations are not intuitively discrimination An IER Investigation may result from: Vendor agreements and impact on own workforce Choice of wording in a job opening announcement Screening employee for ability to work long-term Abundant caution in ensuring all employees are workauthorized Statistical inferences drawn even from proper use of E- Verify Following up on a Social Security data mismatch (including Obamacare mandated reporting) Glitches in electronic I-9 or job application software 17

18 PRE-EMPLOYMENT SCREENING IER (OSC) approved following pre-hire questions: Are you authorized to work in the United States? Do you now or will you in the future need an employer to sponsor you for a visa to work in the United States? IER declines to distinguish lawful exercise of prerogative not to petition for a visa in the future and impermissible rejection of a valid document with future expiration date. Technical Assistance Letter of March 31, 2016 prevents employers from clarifying need for future sponsorship. Alternative theory of liability: Refusal to hire noncitizens with expiring work authorization is alienage discrimination under 42 U.S.C Juarez v. Northwestern Mutual Life Ins. Co., 69 F.Supp.3d 364 (S.D.N.Y. 2014). 18

19 Prohibits: Discriminating in the employment eligibility verification process on the basis of citizenship status or national origin Protects: According to IER: All authorized workers According to March, 2017 administrative court decision: Only those protected against citizenship status discrimination. Covered Action: DOCUMENT ABUSE Requesting more or different documents than are required to verify employment eligibility Rejecting reasonably genuine-looking documents Specifying certain documents over others Refusal to hire or discharge is not required 19

20 CONSEQUENCES TO EMPLOYERS Monetary penalties Recent settlements: Yellow Cab of Nevada - $445,000 (civil penalty) Luis Esparza Services - $320,000 (civil penalty) Farmland Foods - $290,400 (civil penalty) Catholic Healthcare West - $275,000 (civil penalty) Macy s - $275,000 (civil penalty + back wage) Select Staffing - $265,000 (civil penalty + back wage) Bad publicity in the press, on Capitol Hill, etc., for discrimination against U.S. workers, immigrants Protracted (costly) investigation/discovery/litigation Process and not necessarily result is most punitive 20

21 RECAP BEST PRACTICES Be consistent in dealing with announcing a job opening, taking applications, interviewing, offering a job, verifying eligibility to work, hiring and firing. Avoid citizenship status requirements, such as U.S. citizenship or permanent residence, unless mandated by law or federal contract. Carefully draft vendor agreements, and any internal policy regarding vendor selection, to make clear that the agreement is not labor for hire and that immigration status is not a factor for consideration. Allow all employees to present documents of their choice so long as the documents are acceptable under immigration law. Know the difference between expiring documents and expiring work authorization. Do not reverify employees with indefinite right to work unless specifically instructed to do by law. 21

22 IMPACT OF NEW ADMINISTRATION DIRECTION ON ADJUDICATIONS Greater USCIS scrutiny of H-1B petitions 45% more requests for evidence issued this year Increased focus on wage levels in determining eligibility Suspension of premium processing for several months New policy memorandum on computer programmers Disclosure of detailed data about H-1B and L-1 petition approvals for FY 2015 and FY 2016 Lists petitioners by name Lists number of approved petitions For H-1B cases, lists employers average H-1B salary and degree levels of beneficiaries USCIS contemplating changes to the system for allocating H-1B visas, with greater emphasis on wages and academic degree New advance parole policy New USCIS guidance issued 10/2017 rescinds memorandum from 2004 and 2015 granting deference in adjudicating extension petitions New policy reestablishes that the burden of proof remains on the petitioner 22

23 ELIMINATION OF WORK AUTHORIZATION CATEGORIES International Entrepreneur Parole Employment authorization for H-4 visa (spouse of H-1B) Deferred Action for Childhood Arrivals (DACA) Temporary Protected Status 23

24 AGENCY SECURITY AND VETTING INITIATIVES Creation of the National Vetting Center Imposition of in-person interviews for all employment-based adjustment of status applicants vast expansion from a relatively small percentage currently being interviewed (likely to cause delays in adjudications) Extreme vetting memorandum directs DHS, DOS and DOJ to implement more stringent vetting of applicants and petitions for immigration benefits (March 6, 2017) Tillerson memos on identifying population groups and social media checks Proposed rule would allow government to maintain extensive social media information President s tweet following October 31, 2017 terrorist attack signals possible new changes 24

25 PROPOSED LEGISLATION IMPACTING EMPLOYERS Immigration Innovation ( I-Squared ) Act Raises H-1B quotas to 85,000 with additional market escalator up to 195,000 Prohibits displacement of U.S. workers Legal Workforce Act Mandates E-Verify participation Establishes identity authentication pilot programs Fairness for High-Skilled Immigrants Act Eliminates per country numerical limitation 25

26 QUESTIONS? THANK YOU 26

27 Andrea Penedo Fragomen, Del Rey, Bernsen, & Loewy, LLP Houston, Texas (281) Patrick Shen Fragomen, Del Rey, Bernsen, & Loewy, LLP Washington, DC (202)