Browse recent news and blog posts related to immigration below. If you need immigration legal services or wish to browse our attorneys visit our Utah immigration practice page.

Barbara Melendez Selected as One of 30 Women to Watch by Utah Business Magazine

June 2018
Barbara Melendez

Richards Brandt Miller and Nelson congratulates Barbara Melendez, Shareholder and Immigration Practice Chair, who has been selected as one of Utah Business 30 Women to Watch. Richards Brandt is honored to be associated with Barbara who is a highly respected and valued member of the firm. Barbara’s dedication, expertise and experience are invaluable assets to the firm and the community. We are proud of her outstanding achievements and contributions to Richards Brandt Miller Nelson and the legal community.

 

 

 

 

Immigration Law

IMMIGRATION LAW


PRACTICE AREA / UTAH IMMIGRATION ATTORNEYS

Our immigration attorneys understand the ever-changing laws and policies established by the U.S. federal government to process your applications for citizenship and naturalization, protection and parole, adjustment of status, admissibility, refugees and asylum, waivers, travel, and employment. Our immigration law practice is comprised of experienced and dedicated attorneys who combine their knowledge of immigration law with years of experience in employment law, family law, and criminal defense.

IMMIGRATION LAW IN UTAH



Richards Brandt recognizes the value that immigrants bring to American businesses, economies, and communities. Our firm helps organizations and individuals navigate our nation’s increasingly complex immigration laws and unite employers and employees as well as families.

With so many different kinds of immigration visas and the added complexities of immigration law, we are here to help with this complex and time-consuming process. Our experienced team of immigration attorneys can represent you in all of your immigration needs. Together we can work toward your professional immigration goals and family immigration commitments.



Family and Individuals



Our firm is ready to assist your family with whatever immigration needs arise, whether it is an adjustment of status, fiancé visa or a family-based visa petition.

There are numerous forms and hundreds of guidelines and exceptions. For more information about processing your application, call us to discuss your situation and determine the next steps.



Spouse Visas



If you are a U.S. citizen you have two ways to bring your foreign husband or wife to the United States to live. The first is under an immigrant visa for a spouse of a U.S. citizen, the immigrant petition for alien relative is required.

The second way is under the nonimmigrant visa for spouse. The K-3 nonimmigrant visa is available for the foreign-citizen spouse of a United States citizen. This visa category is intended to shorten the physical separation between you and your spouse and has specific eligibility requirements.

Same-sex spouses of U.S. citizens and Lawful Permanent Residents (LPRs), along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses.

RECENT IMMIGRATION LAW UPDATES



The Future of Optional Practical Training Extensions For Non-U.S. Citizens Who Receive Degrees in the Fields of Science, Technology, Engineering, or Mathematics



IMMIGRATION ATTORNEYS AT RICHARDS BRANDT IN SALT LAKE CITY



Fiancé Visas

Fiancé visas are available. If you are a U.S. citizen, you may bring your fiancé to the United States to marry and live here, with a K-1 nonimmigrant visa for a fiancé.

Visitors Visa

Tourism or B-1 Visa tourism may be available for vacations (holiday), visiting friends or relatives, medical treatment, participating in social events hosted by fraternal, social, or service organizations, participating as an amateur in musical, sports, or similar events or contests (unpaid participation), enrollment in a short recreational course of study (not for credit toward a degree — a two-day cooking class while on vacation, for example).

Immediate Relative Immigrant Visas

These visa types are based on a close family relationship with a United States (U.S.) citizen described as an immediate relative. The number of immigrants granted Immediate Relative Immigrant Visas is unlimited.

Immediate relative visa types include:

  • Spouse of a U.S. Citizen
  • Unmarried Child Under 21 Years of Age of a U.S. Citizen
  • Orphan adopted abroad by a U.S. Citizen
  • Orphan to be adopted in the U.S. by a U.S. citizen
  • Parent of a U.S. Citizen who is at least 21 years old

Family Preference Immigrant Visas

There are a limited number of these visas issued each year to distant family members. Family Preference Immigrant Visas are available to relatives of U.S. citizens and some specified relationships with a lawful permanent resident (LPR.)

The family preference categories are:

  • Family First Preference: Unmarried sons and daughters of U.S. citizens, and their minor children, if any.
  • Family Second Preference: Spouses, minor children, and unmarried sons and daughters (age 21 and over) of LPRs. At least 77% of all visas available for this category will go to the spouses and children; the remainder are allocated to unmarried sons and daughters.
  • Family Third Preference: Married sons and daughters of U.S. citizens, and their spouses and minor children.
  • Family Fourth Preference: Brothers and sisters of U.S. citizens, and their spouses and minor children, provided the U.S. citizens are at least 21 years of age.

Other Travel Visas

These are some examples of activities that require different categories of visas and cannot be done while on a visitor visa:

  • study
  • employment
  • paid performances, or any professional performance before a paying audience
  • arrival as a crewmember on a ship or aircraft
  • work as foreign press, radio, film, journalists, and other information media
  • permanent residence in the United States

Employers

Employees are the single largest investment an employer makes. Employers rely on their workforce for the success of the company. There are many different visa options to consider. We take you and your employee(s) through this lengthy process step by step. We manage the risks and eliminate surprises. Whether your employees are here in the U.S. or overseas, we can streamline the process by staying on top of every variable.

Every fiscal year (October 1st – September 30th), approximately 140,000 employment-based immigrant visas are made available to qualified applicants under the provisions of U.S. immigration law. Our attorneys work across the U.S. with each of the three centralized immigration offices.

Employment-based immigrant visas are divided into five preference categories. Each category has several subcategories, each with mandated limitations, restrictions, and requirements.

Employment First Preference

      • Priority Workers
      • Persons with extraordinary ability
      • Outstanding professors and researchers
      • Multinational managers or executives

Employment Second Preference

      • Professionals Holding Advanced Degrees
      • Persons of Exceptional Ability

Employment Third Preference

      • Skilled Workers
      • Professionals
      • Unskilled Workers (Other Workers)

Employment Fourth Preference

      • Certain Special Immigrants

Employment Fifth Preference

    • Immigrant Investors

Contact us for a detailed evaluation on which option is best for your needs.

  • NAFTA – TN visas (Canadians and Mexicans may be eligible to work in the United States as NAFTA professionals, requirements vary by country)
  • B-1 (consult with business associates; attend a scientific, educational, professional, or business convention or conference; settle an estate; negotiate a contract)
  • H-2B Temporary Non-Agricultural Worker (For temporary or seasonal non-agricultural work. Limited to citizens or nationals of designated countries, with limited exceptions, if determined to be in the United States interest.)
  • H-2A Temporary Agricultural Worker (for temporary or seasonal agricultural work. Limited to citizens or nationals of designated countries, with limited exceptions, if determined to be in the United States interest).
  • H-1B Person in Specialty Occupation (Requires a higher education degree or its equivalent).
  • H-3 Trainee or Special Education Visitor (To receive training (other than graduate medical or academic) that is not available in the trainee’s home country, or practical training programs in the education of children with mental, physical, or emotional disabilities).
  • L Intracompany Transferee (To work at a branch, parent, affiliate, or subsidiary of the current employer in a managerial or executive capacity, or in a position requiring specialized knowledge. Individual must have been employed by the same employer abroad continuously for 1 year within the three preceding years).
  • Individual with Extraordinary Ability or Achievement (Individuals with extraordinary abilities in the sciences, arts, business, education or athletics. A person with an O Visa may be eligible for legal permanent residency (green card) based on Extraordinary Ability.)
  • P-1, P-2, P-3 Visas (Individual or Team Athlete, Artist, Entertainer or member of an Entertainment Group)
  • Permanent Resident or Green Card (Individuals may apply for permanent residency through family, employment, or refugee or asylee status. Other applications may be an option under diversity, fiancé, or juvenile status.)

Naturalization & Citizenship

Naturalization is the process in which the U.S. grants citizenship to a foreign citizen or national after he or she fulfills the requirements established by Congress under the Immigration and Nationality Act (INA). This is the final step before becoming a citizen. Let us help you in this crucial step to finalizing your U.S. citizenship.

Call us directly for high volume visa filings or multiple filings. It can be more cost effective to have retained legal support and minimize multiple filing fees over individual filing fees.

DEPORTATION AND REMOVAL

You may be eligible for a benefit that allows you to remain in the U.S. This is a time-sensitive issue, contacting an immigration attorney quickly is critical. Our law firm is ready to represent you in any removal or deportation proceeding. Contact us if you or a loved one is currently a removal proceeding.

I-9 COMPLIANCE AND AUDIT

Employers must comply with state and federal laws and regulations to hire and retain talented and much-needed employees. Whether you are hiring U.S. citizens, foreign nationals, or permanent residents, we have extensive experience in assisting clients with compliance and audit matters. Our services include representing our clients during government investigations and audits. We also promote and assist our clients in proactive measures such as:

  • Internal and third-party I-9 audits
  • Reviewing and correcting mistakes on existing I-9 Forms
  • Risk assessment and compliance policies
  • Compliance manuals and training

IMMIGRATION & CRIMINAL DEFENSE View

What are the consequences of criminal convictions to a person’s immigration status? Our Immigration Practice Group has decades of experience evaluating the impact of actions and convictions to your legal status in the US. Working together with your criminal defense attorney we can provide our clients the most comprehensive representation.

Ever-changing immigration laws make navigating the criminal justice system difficult and can have life-changing immigration consequences. If you have been arrested or charged with a criminal offense and are not a U.S. citizen, you need representation by attorneys who understand both the criminal and immigration laws that affect your case.

The attorneys at Richards Brandt can give effective representation at every stage of your case to mitigate the immigration consequences of your arrest, charge or conviction.

FAMILY LAW View

Divorce and custody cases are complex. The complications are even more difficult when a foreign national’s immigrant status is part of the mix. We work directly with our Immigration Practice Group on any issues that may be impacted in the course of a divorce or custody case involving a foreign national.

BUSINESS, EMPLOYMENT, & IMMIGRATION

Employers have numerous business, employment, and labor laws to navigate and comply with. In a world of increasing global connections, the need to work with individuals and companies here and abroad has never been greater. Our Business & Corporate Governance group along with our Labor & Employment group provide risk management and legal support to employers.

RESOURCES

U.S. Citizenship & Immigration Services

Department of Labor

U.S. Department of State

TALK WITH US

Deferred Action for Childhood Arrivals – Where are we now?

Kendall Moriarty
February 2018

Limbo. On June 15, 2012, President Obama unveiled a program called Deferred Action for Childhood Arrivals (or “DACA”) which would provide employment authorization and protection from deportation for individuals who entered the United States as children and who had never committed a deportable crime. The program began accepting applications on August 15, 2012. Since then, U.S. Citizenship and Immigration Services (or “USCIS,” the branch of the Department of Homeland Security that processes DACA applications and renewals) has accepted over 1.5 million applications requesting relief[1] (at $495[2] a pop, that’s more than $742,500,000 in revenue for the federal government[3]). Of those 1.5 million, more than 1.2 million have been approved.[4]

On September 5, 2017, President Trump issued a new Executive Order effectively beginning a “phasing out” DACA by giving only certain individuals the right to renew within one month’s time. Everyone else could maintain their status until its expiration, but would then lose their protection. However, on January 10, 2018, the District Court for the Northern District of California issued a preliminary injunction pausing President Trump’s order. While this pause does not revive the program entirely, it provides a window of relief for the thousands of individuals who had already been issued DACA and who needed to renew it but missed the deadline or did not qualify based on President Trump’s October 5, 2017 requirement.

In response to the court’s decision, on January 13, 2018, USCIS issued a policy update[5] stating that the agency would again accept DACA renewal applications. This included applications for those who had let their DACA status expire more than a year before President Trump’s September 5, 2017 announcement. However, those who have never been issued DACA cannot newly apply.

Still, the court order allowing eligible individuals to renew their DACA status provides important physical and emotional security for thousands of individuals. Employers who have hired and trained DACA recipients as part of their workforce now also enjoy an added measure of stability.

What does this mean for you?

If you currently have DACA, you may be eligible to renew your work authorization and DACA status. If you have any questions on whether you qualify or how or when you should renew, please call us.

If you are an employer who has hired DACA workers and want to know how these changes affect you and your business, please call us.

If you have never had DACA but want to know if you have other options for seeking and obtaining status in the United States, information is power; please call us.

Author: Kendall J. Moriarty, immigration and general litigation attorney at Richards Brandt Miller Nelson.

[1]https://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca_performancedata_fy2016_qtr3.pdf.

[2] https://www.uscis.gov/i-821d.

[3] The Institute on Taxation and Economic Policy found that DACA-eligible individuals and DACA recipients “contribute an estimated $2 billion a year in state and local taxes.” https://itep.org/state-local-tax-contributions-of-young-undocumented-immigrants/.

[4] Id.

[5] https://www.uscis.gov/humanitarian/deferred-action-childhood-arrivals-response-january-2018-preliminary-injunction.

Abogado de Inmigración

ABOGADO DE INMIGRACIÓN


PRACTICE AREA / ABOGADO DE INMIGRACIÓN

La oficina de los abogados Richards Brandt reconoce el valor que los inmigrantes traen a los negocios, economía y comunidades de los Estados Unidos. Nuestro bufete de abogados ayuda a sus clientes a navegar las leyes complejas de inmigración de nuestro país.

OFRECEMOS SERVICIOS LEGALES PARA NECESIDADES BASADAS EN EL EMPLEO Y LA FAMILIA.



Tenemos abogados quienes son muy dedicados y determinados, y quienes combinan conocimiento de las leyes de inmigración con años de experiencia en leyes de empleo, familia, y defensa criminal.



AYUDA PARA FAMILIAS PARA PERMANECER JUNTOS



Nuestro bufete de abogados está listo a ayudarle a su familia con cualquier pregunta relacionada a la inmigración que tenga. Podemos ayudarle con una variedad de casos, como cambiar un estado migratorio o pedir una visa para un miembro de su familia. También tenemos experiencia en dar ayuda a los inmigrantes jóvenes a llenar los documentos necesarios para el programa “Acción Deferida para Llegadas Infancias,” que permite a ciertos inmigrantes jóvenes obtener un permiso para trabajar legalmente en los Estados Unidos. También, estamos listos para representarle en un proceso de repatriación o deportación.



COMBINACIÓN DE CONOCIMIENTO DE LA LEY DE INMIGRACIÓN Y LAS LEYES DE DEFENSA CRIMINAL



Porque las leyes criminales y de inmigración están en cambio, los arrestos y convicciones pueden tener consecuencias migratorias muy graves. Si Ud. recibió un boleto o una multa, o fue arrestado o le encontraron culpable de una ofensa criminal, y si Ud. no es ciudadano de los Estados Unidos, Ud. necesita representación de abogados quienes entienden las consecuencias criminales y migratorias de cada aspecto de su caso. Los abogados de Richards Brandt pueden dar representación efectiva en cada etapa de su caso para reducir las consecuencias migratorias de su arresto, cargo o convicción.



TRABAJAMOS CON EMPRESAS PARA CUMPLIR CON LOS REQUISITOS DE LAS LEYES Y REGULACIONES DE INMIGRACIÓN



Cualquier empresa necesitan cumplir con las leyes y regulaciones federales y estatales para contratar y emplear buenos trabajadores. Las empresas podrían ser responsables con multas grandes si no cumplen con estas leyes. Nuestro bufete de abogados puede ayudar a empresas grandes y pequeñas a cumplir con estas leyes. Por favor, póngase en contacto con nuestro bufete si su empresa quiere desarrollar un plan de cumplimiento o necesita ayuda para obtener visas para sus empleados, o necesita representación en un caso con el gobierno federal o estatal.

Póngase en Contacto con Nuestro Bufete de Abogados para Hacer una Consulta

Comuniquese con nuestra oficina para una consulta con un abogado de inmigración.



TALK WITH US

RECENT ABOGADO DE INMIGRACIÓN UPDATES



The Future of Optional Practical Training Extensions For Non-U.S. Citizens Who Receive Degrees in the Fields of Science, Technology, Engineering, or Mathematics



ABOGADO DE INMIGRACIÓN



FREQUENTLY ASKED QUESTIONS (FAQS)



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE / FEATURED FAQS



Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.

Answered by:

Barry G. Scholl

Barry Scholl

Shareholder, Cybersecurity Section Chair and Business Practice Chair

A: To decide which entity is right for you, we look at: liability, taxation, and maintenance. Both corporations and LLC’s have limited personal liability—this means that owners are usually not responsible for business debts. However, corporations and LLC’s are taxed very differently—corporations are classified as a separate taxable entity, whereas LLC’s are typically taxed as a pass-through entity (unless you choose otherwise). And corporations and LLC’s have different levels of maintenance—LLC’s have fewer reporting requirements and can operate solely with members acting as the managers. Conversely, corporations are required to hold certain annual meetings, keep certain records, and appoint boards and officers to manage the company for the stockholders. Every situation is unique so we recommend that you consult with an attorney in making your decision. Contact our firm, Richards Brandt, if we can help you decide which entity is right for you.



BUSINESS TRANSACTIONS & CORPORATE GOVERNANCE – CASE STUDIES





Utah Manufacturing Company Needed Employment Contracts For Key Staffers




Utah Construction Company Needed Planning For Business Growth & Protection




Utah Family Enterprise Needed Guidance and Representation to Sell Business

REVIEWS




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The Future of Optional Practical Training Extensions For Non-U.S. Citizens Who Receive Degrees in the Fields of Science, Technology, Engineering, or Mathematics

Kristina Ruedas
February, 2016

One of the most enduring concerns about the current U.S. immigration law is the difficult and lengthy process qualified non-U.S. citizen workers face in obtaining work visas. In an attempt to provide a bridge between graduation and obtaining a work visa for qualified non-U.S. citizens who graduated from American institutions, the U.S. Department of Homeland Security (“DHS”) established the Optional Practical Training (“OPT”) program to allow foreign nationals who study at United States institutions of higher education on F-1 student visas to work in the United States for up to 12 months during and/or after their education. In 2008, DHS established a new policy allowing students who receive degrees in a science, technology, engineering, or mathematics (“STEM”) field to apply for a 17-month extension of OPT. This allowed non-U.S. citizen STEM workers to continue working in the United States for up to 29 months while waiting for an approved, longer term employment visa.

The OPT program was thrown into question when the Washington Alliance of Technology Workers (“WashTech”), a union representing U.S. citizen technology workers, filed a lawsuit against DHS, claiming that the OPT program circumvented labor rights protected by the H-1B visa program for temporary employment, and that the interim final rule that established the 17-month STEM extension program was procedurally invalid. On August 12, 2015, the U.S. District Court for the District of Columbia ruled that DHS did not follow proper notice-and-comment procedures for the April 2008 rule. Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, Civil Action No. 14-529, 2015 WL 5455331 (D.D.C. August 12, 2015). The court revoked the 17-month STEM extension program as of February 12, 2016, giving DHS time to propose and establish a new rule. A subsequent motion to dismiss filed by the government was granted in part and denied in part, narrowing WashTech’s claims to the 17-month STEM extension program rather than the OPT program as a whole.

On October 19, 2015, DHS published a proposed rule to replace the 17-month STEM extension. The proposed rule also increased the STEM extension from 17 months to 24 months. In other words, if approved, non-U.S. citizen STEM workers could have valid work authorization for a total of 36 months, or three years, after graduation from an American university or college. The proposed rule also contains provisions that would grant relief to workers who “run out” of OPT while an employment visa application is pending decision. Pursuant to the Administrative Procedure Act, DHS took public comment on the proposed rule until November 18, 2015. DHS is now working to turn the proposed rule into a final rule as soon as possible in an attempt to avoid any problematic gaps in work authorization.

The results of this litigation and rulemaking process has high stakes for thousands of non-U.S. citizen students, graduates, and their employers who rely on this work authorization. Should the current 17-month extension lapse on February 12 with no new final rule in place, STEM extension workers would need to immediately cease employment. If you are a non-U.S. citizen student or recent graduate, or are an employer utilizing temporary employment visas, please contact our office for advice on how to plan for potential changes in the Optional Practical Training.

The contents of this piece are not legal advice, and this piece does not create an attorney-client relationship. Kristina Ruedas is a Utah Immigration Attorney with RBMN, and can be contacted at (801) 531-2000 or kristina-rudeas@rbmn.com.

Immigration Issues and Personal Injury Defense

Personal Injury Law Books & Gavel

Tanya N. Lewis Peters
February 2013

Regardless of the political issues currently swirling around immigration reform, it is important to have a grasp of basic immigration law principles when defending personal injury cases.

A few recent cases are illustrative of the effects that an undocumented worker’s status can have on claims of personal injury, plaintiff employment, or similar claims.

Hoffman v. NLRB, 122 S.Ct. 1275 (2002). In this case, the employer petitioned for review of, and the National Labor Relations Board (NLRB) cross-applied for enforcement of, an NLRB order awarding an undocumented worker backpay from date of his illegal termination until the employer discovered he was unauthorized to work. A panel of the Court of Appeals for the District of Columbia Circuit ordered enforcement. Following grant of a petition for rehearing en banc, the Court of Appeals again granted enforcement. On appeal, the U.S. Supreme Court, Chief Justice Rehnquist, held that federal immigration policy foreclosed the NLRB from awarding backpay to an undocumented worker who had never been legally authorized to work in the United States.

Madeira v. Affordable Housing Foundation, 315 F.Supp.2d 504 (S.D. New York 2004). Here, an injured undocumented worker’s status did not prevent him from recovering compensatory damages for defendants’ violation of New York’s Scaffold Law. His undocumented immigrant status was relevant to determining whether lost wages were appropriate and how much should be awarded.

Silva v. Wilcox, 223 P.3d 127 (Colo. Ct. App. 2009). Here, to the extent that a defendant is able to establish that a plaintiff immigrant is not authorized to be in the United States and has secured employment by violating the law or is in violation of the law in some other particular manner related to such employment, so that the plaintiff is unlikely to remain in this country throughout the period of claimed lost future income, the jury should be provided that information in determining whether to award damages for lost future wages.

During discovery, an attorney may wish to direct written discovery to the plaintiff that asks about citizenship and immigration status. During the deposition of a plaintiff believed to be an undocumented immigrant, potential questions to ask include: Are you a U.S. Citizen? Where were you born? What is your immigration status? Are you legally authorized to work in the U.S.? If so, how is that documented? Have you ever applied for Medicare or Medicaid? (Don’t assume they haven’t – a Medicare audit last year revealed that people living in the U.S. illegally had collected over $120 million in Medicare benefits as of 2012. This could trigger Medicare Secondary Payer Act issues in the future.)

You can also take the deposition of the employer. Always do this as a 30(b)(6), and always serve the notice as a Notice of Deposition Duces Tecum. You can also subpoena the documents beforehand using Rule 45. Ask them to provide a complete employee file, including hire documents. Define “hire documents” as the employment application, I-9 form, and any copies of documents inspected in conjunction with the I-9 form. (This is, of course, in addition to any wage loss documents you want to obtain, such as W2s, W4s, payroll information, etc.)

Using best practices in the handling and workup of these cases can minimize carrier/defendant exposure by putting you in the best position for pretrial motions, including motions in limine.

Of course, this raises the issue of what to do when defending a case and your client (defendant) is undocumented. For example, this problem arises when a driver hired by an employer turns out to be working illegally, and then causes an automobile accident while in the course and scope of his/her employment. First, try to exclude the defendant’s immigration status under Rule 401. Second, TXI Transportation v. Hughes, 306 S.W.3d 230 (Texas 2010) is extremely helpful. It held that neither the illegal immigrant status of a gravel truck driver, nor his use of a fake Social Security number to obtain his commercial driver’s license, was relevant to a negligent entrustment or hiring claim against the employer. It also held that the illegal immigrant’s status was inadmissible to impeach the driver’s testimony, and that erroneous admission of evidence relating to the driver’s immigration status was not harmless.

Compliance with Immigration Law and the Value of an Independent Form I-9 Audit

February 2013

Over the last year, the national news has been populated with headlines addressing the fierce debate over immigration reform. Many may not realize that even before the 2012 presidential election, federal law enforcement agencies had begun paying increased attention to businesses’ compliance with immigration laws and regulations. In 2011 alone there were approximately 2,500 immigration-related audits of employee records, resulting in well over $6 million in administrative fines, and the number of audits performed each year is steadily increasing. The main targets for compliance auditing are the proper completion and storage of Form I-9s for every employee and the proper use of E-Verify to check employees’ immigration status. This article will discuss how the potential fines and disruption of company operations resulting from an audit can be greatly mitigated by conducting an independent I-9 audit before you are audited by the government.

The nation’s immigration laws and regulations apply to every U.S. employer, regardless of whether the employer employs immigrants or not, and the fines and penalties for violation of these laws will be assessed regardless of whether an employer employs immigrants. Every U.S. employer is prohibited from knowingly hiring an immigrant who is unauthorized to work or continuing to employ an immigrant once the employer discovers the immigrant is not authorized or is no longer authorized to work. The government only needs to establish the “knowing” element by a preponderance of the evidence, the easiest legal standard to meet, and knowledge will be inferred by notice of certain facts. An employer’s violation of immigration laws and regulations triggers substantial fines and penalties: between $375 and $3,200 for every incident of “knowingly” employing an immigrant not authorized to work (the fine increases for repeat offenders), between $110 and $1,100 for every failure to properly retain and present a Form I-9 for audit, debarment from federal contracts, and in some cases, criminal charges.

The Immigration and Customs Enforcement Agency (“ICE”) begins an I-9 audit of a company by presenting a “Notice of Intent” to inspect the company documents, which gives the employer 72 hours to gather the necessary documents and prepare for the audit. When ICE returns to the company after 72 hours, its officers demand production of Form I-9s for all current and terminated employees, a list of all current and terminated employees with hire and termination dates, copies of all quarterly wage and hour reports and/or payroll information for all current and terminated employees for the period of inspection, quarterly tax information, business information (valid licenses, etc.), proof of enrollment in E-Verify, and any communications with the Social Security Administration regarding mismatched identification numbers. Any delay in production of the above documents beyond the 72-hour period constitutes a violation of the retention requirements for Form I-9s.

ICE pursues companies regardless of size, industry, or geographic location. Oftentimes, these audits are triggered by a former or disgruntled employee who alerts ICE to possible infractions of the law. The availability of U visas, which grant legal status to immigrants who aid law enforcement and report crimes, also creates an incentive for some former employees to report possible violations of immigration law and regulation. Audits are taxing and expensive for a company that is not prepared to handle the audit expeditiously.

Because of the costs associated with government audits, measured in both potential fines and disruption of company operations, an independent audit conducted in preparation of a potential government audit has significant benefits. The purpose of an independent I-9 audit is to discover any evidence that could be used to fine the employer for “knowingly” hiring or continuing to employ an immigrant unauthorized to work; to recommend how to mitigate potential violations and keep current on best compliance practices; to check the efficiency of an employer’s re-verification system for I-9s; and to determine whether there is substantial evidence of an employer’s good faith efforts to comply with the verification system. An independent audit not only provides peace of mind for an employer, but also acts as a significant mitigating factor should a government audit reveal a mistake or inconsistency in documentation.

Please contact us for an internal review of your company’s immigration compliance or to address any other immigration or employment concerns.

The “Gang of 8” Senators Release the Border Security, Economic Opportunity and Immigration Modernization Act of 2013

Gang of 8 Senators

April 2013

After months of debate, negotiations and speculation, the “Gang of 8,” made up of eight Republican and Democratic senators charged with the task of composing an immigration reform bill, has released its much-anticipated proposal. On Wednesday, April 17, the 844-page bill (titled the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013“) was filed in the Senate. The bill represents some significant compromises between the two major parties and reflects the changed political landscape surrounding immigration reform in the wake of last November’s election.

Here is a brief overview of some of the key provisions of the bill:

Border Security

The Department of Homeland Security must create, fund and implement a border security and fence plan. Within 10 years of the bill’s enactment, all employers in the United States must be using E-Verify. A visa exist system must be implemented at all international airports and seaports.

Jobs

The bill seeks to protect American workers from losing much-needed jobs to immigrants. The bill would not allow any work visas to be issued if the unemployment rate in a certain area is above 8.5 percent. Foreign students will get a “green card stapled to their diplomas.” The number of available H1-B visas will be nearly doubled. However, certain categories of family visas such as siblings and adult, married children of citizens will be eliminated.

The Guest Worker Program will be “modernized.” A new agricultural guest worker visa program will be established, which will allow some current undocumented agricultural workers to obtain legal status through an Agricultural Card Program.

Pathway to Citizenship

The bill proposes a long and arduous “pathway to citizenship” for the estimated 11 million people living in the United States illegally. No undocumented immigrant is eligible to apply for this temporary status until the border security measures are in place. Once the first security triggers are achieved, undocumented immigrants will be able to come forward, pass background checks, be fingerprinted, pay $2,000 in fines, pay taxes, prove gainful employment, and prove they have been in the U.S. since 2011, among other criteria. Those who have a serious criminal history or do not meet the above criteria will be deported.

Undocumented immigrants will not be eligible for federal benefits during this time, including benefits under “Obamacare.” Undocumented immigrants will have to prove they can support themselves and are not dependent on the government by verifying that they earn at least 25 percent above the poverty level and are gainfully employed.

Certain immigrants who were deported will be allowed to return to the United States if their spouse and children are still living in the United States.

The Dream Act

The bill contains a version of the Dream Act, which would allow young undocumented people whose parents brought them to the U.S. illegally or overstayed visas to be eligible for permanent residence in five years and citizenship immediately thereafter if they meet certain criteria.

The bill still has a long road ahead of it, and both conservatives and immigration reform proponents have already begun attacking the bill. However, many would agree that this is the closest the country has come in years to meaningful immigration reform. Let the debates begin!

Contact Barbara Melendez or Kristina Ruedas for more information.

Form I-9 Compliance Video Presentation

September 23, 2014

Complying with the rules and regulations under the Form I-9 enforced by USCIS.

In September 2012, 520 criminal work place enforcements and arrests took place. In September 2013, more fines were issued, in one case the government issued a $34m to settle systematic visa fraud and abuse. ICE is enforcing felony criminal charges. The Grand America was fined $2m for immigration violations.

Fines and penalties are expected to increase along with re-audits by ICE.

Correct your measures
Audit your forms
Train your employees
Execute I-9 compliance plan

 

2014 Executive Orders on Immigration Video Presentation

September 2014

President Obama decided to pursue Immigration Reform through Executive Orders. May hear something after November 5, 2014.

  • Work Permits for Parents of DACA
  • Work Permits for Agriculture
  • Increase Employment Related Visas
  • Extension for Foreign Nationals who Graduate from U.S.
  • Residency for Spouses of U.S. Citizens who Entered Illegally

 

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