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 Work

1. 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 year

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Immigration Law, Quickly…A SNAPSHOT OF THE BASICS OF IMMIGRATION LAW

Leyla McMullen

Business Immigration Attorney

Mdivani Corporate Immigration Law Firm

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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

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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)

What is what?Citizen:  Someone born in the U.S. or naturalized

Permanent Resident: Someone who has applied for and 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 orOut of Status

Deferred Action: Someone granted ability to live and work in the United States without being given status

Ex. DACA/DAPA (?)/U‐Visas

Immigration Law Vocab

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Types of Immigration Law

Business  vs. Family  vs. Humanitarian •Who is your client?

• Standard of Proof

• Interviews?

• USCIS Trends

• Predictability?

1.Effects Criminal Plea Deals (Padilla v. Kentucky)

2. Status vs. Visa

3. Notario Fraud

4. Bars to Readmission

5. Timing Issues

Important Considerations for General Practitioners

QUICK TIPS

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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

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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

Sss

Ss Sss

Ss sss

2009  

INTERNAL

WORKSITE

ENFORCEMENT

MEMO

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Case Examples

Olathe, KS & Kansas City, MO

Owners, Family Members, 

and Employees

Employing & Harboring

Max 10 years federal prison

Plus Fines

Wei’s Super Buffet

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Spring Hill, Kansas 

DHS & IRS

Subcontractor Issues

Owners and Managers

Charges: 

Harboring – 5 yrs & $250k (Each Count)

Advantage Framing

Washington Apple Orchard

900+ Undocumented workers

Penalty:

$2 Million w/n 30 days

No Criminal Prosecution

Broetje Orchards, LLC

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Mike Millenkamp Dairy Cattle:Several Unauthorized Workers

Harboring

Plea Agreement Requirements:Engage in Ongoing CompliancePay $250,000 in fines2 Presentations to Statewide Farm GroupsAND 3 months of jail time (out of 10 years possible)

Iowa Dairy Farmer

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

Macy’s

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Technical I‐9 Violations

Outsourced I‐9s to Vendors

Cannot Escape Liability

Fines of Over $1 Million

No Unauthorized Workers

Abercrombie & Fitch

Discrimination Issues

Requesting Green Cards

Civil Penalties +

$150,000 Fund + Back Wages to Employees (~$3,000/person)

Monitored by Gov’t for 2 years

Abercrombie & Fitch…Again

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Business Visas and Green CardsTemporary work authorization used typically for those in skilled labor positions

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

H‐1B: Workhorse of Visas

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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

Employment‐Based Green Cards

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Family‐Based Green Cards

Immediate Relative:  Spouses, Unmarried Children under age 21 FB‐1; FB‐2A; FB‐2B; FB‐3; FB‐4

Consular ProcessingWhole subsection devoted to international adoptionHague Convention

Immigration Law and VAWA –self‐petitioning battered women (usually)

Any Credible Evidence (Low Burden)

Can STILL be Difficult to Prove

Pro Bono/Humanitarian Cases

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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 processB1 Visas‐Single Performances

P Visas‐Performers

O Visa‐Extraordinary Musicians

H‐1Bs‐Professors

Green Cards!

Must support the arts!

Pro Bono/Humanitarian Cases

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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

Leyla McMullen

Business Immigration Attorney

Mdivani Corporate Immigration Law Firm

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MDIVANI CORPORATE IMMIGRATION LAW FIRM

WWW.USLEGALIMMIGRATION.COM

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