Immigration Alerts for Businesses & Employers
an Educational Service by Badmus Law Firm 
 
In This Issue
Government Warns Employers to Expect More Aggressive Immigration Enforcement
Employer Ejected from H-1B Visa Program and Ordered To Pay Back Wages and Fines
Arizona Colleges Accused of Going Too Far in Employment Verification Process
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The headlines continue to demonstrate that employers can cross the fine line between employment eligibility verification and immigration discrimination. As the government continues to aggressively monitor and audit employers as an overall strategy of tough immigration enforcement, businesses must be vigilant but not overzealous.

In this issue, you will find information to help you and your business survive government scrutiny and avoid the fines, penalties, and negative publicity associated with immigration violations.
 
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Ann Massey Badmus
Badmus Law Firm
  
 
Audit
Government Warns Employers To Expect More Aggressive Enforcement of 
Immigration-Related Employment Rules 
 

According to a recent report from Immigration and Customs Enforcement (ICE), between fiscal years (FY) 2010 and 2014, ICE will prioritize its efforts on the first three homeland security missions identified in the 2010 Quadrennial Homeland Security Report: (1) preventing terrorism and enhancing security; (2) securing and managing our borders; and (3) enforcing and administering our immigration laws. One top priority in this plan is to "create a culture of employer compliance."  According to ICE:
 
"The opportunity to work in the United States motivates many to seek illegal entry. Therefore, enforcing the immigration-related employment laws is a critical component of border security. To create a culture of compliance among employers, ICE will use the following two-pronged strategy: (1) aggressive criminal and civil enforcement against those employers who knowingly violate the law; and (2) continued implementation of programs, such as E-Verify and ICE's IMAGE program, to help employers comply. Criminal investigations will increasingly focus on employers who abuse and exploit workers or otherwise engage in egregious conduct. To support a meaningful civil audit program, ICE will hire additional auditors and centralize some auditing functions. Through the "I E-Verify" campaign, ICE will work with U.S. Citizenship and Immigration Services (USCIS) to increase public support for companies that use compliance tools. Finally, ICE will seek better statutory tools to address illegal employment."
 
 
Badmus Advisory:  In 2009 and 2010, ICE has tripled the number of businesses it audits and has collected over  $20,000,000 in fines and penalties.  There is no business exempt from audit. To defend your company in the face of an ICE audit, write and implement an immigration compliance plan combined with an annual internal audit and training program for your employees who are responsible for I-9 compliance. ICE is often willing to forgive innocent mistakes if you use these compliance tools.   For more information and assistance with developing an effective immigration compliance policy and program that can save you thousands in fines  and penalties, you are invited to email or call Ann Badmus at annbadmus@badmuslaw.com, 469-916-7900.
The Department of Labor Ejects Southland Filipino Newspaper from the H-1B Visa Program and Orders Back Wages and Penalties
 
Asian Journal agrees to pay nearly $516,500 to 32 employees plus a $40,000 penalty
 
Recently, the U.S. Department of Labor announced that it has debarred Asian Journal Publications from using the H-1B visa program to hire temporary workers.  An investigation conducted by the department's Wage and Hour Division, determined that the employer did not properly pay the workers and misrepresented facts on the Labor Condition Application filed with the department's Employment Training Administration requesting approval to hire the workers. The debarment will remain in effect until July 30, 2012. 
 
"Misrepresenting the facts of the employment situation harms the workers who are hired for their professional expertise, and hurts domestic job seekers who may have otherwise been eligible for the positions," said Secretary of Labor Hilda L. Solis. "We cannot allow employers to take advantage of temporary workers who might be reluctant to come forward in such situations, nor will we allow unscrupulous employers to gain an unfair advantage over competitors who play by the rules."

The LCA submitted by Asian Journal stated that workers were sought for positions as accountants, reporters, news writers, journalists, business analysts, public relations specialists and financial analysts.  However, the investigation revealed that most were working in sales as account executives. In addition to misrepresenting the facts on the application, the employer failed to properly pay the required wage rate and to maintain documentation required under the H-1B visa program. The department also contends the employer required the workers to pay visa processing fees. Asian Journal has agreed to pay the 22 workers hired using the H-1B program, a total of $473,218 in back wages as a result of the investigation, as well as a $40,000 civil money penalty.

The department also found that 10 employees not hired through the H-1B program were due $43,276 in back wages resulting from violations of the federal Fair Labor Standards Act. The employees, who worked as delivery drivers and office staff, were not receiving overtime pay when working more than 40 hours in a week. Asian Journal has operations in Los Angeles, San Francisco, Las Vegas, New York and the Philippines.  The department's regional Office of the Solicitor assisted in the case, which resulted from an investigation conducted by the Wage and Hour Division's Los Angeles District Office.
 
Badmus Advisory: Although the employer in this story appears to have knowingly misrepresented itself, unintentional mistakes can violate H-1B rules for which employers are liable.  Diligent employers must be certain that their applications properly reflect the employees' duties and other terms of employment.  Any changes to employment, including promotions, demotions, wage changes, work location, may require an amendment to the H-1B petition.  Failure to amend the H-1B visa petition can cost employers thousands in fines and defense fees. 
 
For more information and assistance if you anticipate any proposed changes to your H-1B employees' terms of employment and want to avoid innocent but costly violationswith H-1B employer rules, you are invited to email or call annbadmus@badmuslaw.com, 469-916-7900.
Arizona Colleges Accused of Immigration Discrimination
Before this year, Phoenix-area community colleges asked legal immigrants to show a green card before hiring them. The Justice Department calls the policy 'document abuse' and seeks damages.

By David G. Savage, Tribune Washington Bureau
September 4, 2010

 
Employers who hire illegal immigrants can be fined, but the Obama administration warned this week that they also can be fined for asking legal immigrants to show their green cards before hiring them.

The Justice Department's civil rights division sued the Maricopa County Community Colleges in Arizona, seeking damages from schools for having "intentionally committed document abuse discrimination."

Prior to this year, the local colleges in the Phoenix area asked job applicants who were not U.S. citizens to show a driver's license, a Social Security card and their permanent resident card, commonly called a green card.

The Justice Department said a valid driver's license and a Social Security card are usually sufficient to show that a person is authorized to work. Requesting a green card amounts to "immigration-related employment discrimination," said Thomas E. Perez, the assistant attorney general for civil rights.

Federal law forbids treating "authorized workers differently during the hiring process based on their citizenship status," Perez said. He said the department's Office of Special Counsel would bring legal actions against employers who impose "unnecessary and discriminatory hurdles to employment for work-authorized noncitizens."

Amid the fierce controversy over immigration, the Obama administration has launched three lawsuits this summer to protect the rights of Latinos and legal immigrants - all three targeting Arizona.

In July, the administration successfully blocked Arizona's law that authorized state and local police to check the immigration status of persons who were arrested. On Thursday, it sued Maricopa County Sheriff Joe Arpaio seeking documents that could show he has illegally targeted Latinos in the course of his immigration sweeps.

The suit against the Maricopa community colleges, announced Monday, and could affect employers across the nation.

"Employers are getting very mixed messages from the government," said Jessica Vaughan, a policy analyst with the Center for Immigration Studies.

On one hand, employers have been told they need to do more to verify that their workers are legal and authorized to work in the United States. Federal immigration law says hiring "an unauthorized alien" can result in fines of up to $3,000 per worker. However, another provision of the same law bars employers from requesting "more or different documents" than are needed to prove a noncitizen's legal status.

In the Maricopa college case, the Justice Department said it wanted "full remedial relief" for 247 noncitizens who applied for jobs with the community college district between August 2008 and January of this year, plus a civil penalty of $1,100 for each of them.

"We are extremely disappointed by the Justice Department's action. We had no intent to discriminate against any foreign national, and we feel we have been singled out for the maximum penalty under the law," said Charles Reinebold, a spokesman for the community colleges. "There was no actual harm here. This was a paperwork error, and we revised it after it was brought to our attention."

Vaughan said she was "very surprised the administration would resort to a lawsuit. In the past, the emphasis has been on mediation to resolve these issues."

But others applauded the administration's move to enforce the anti-discrimination parts of the immigration law.

Gening Liao, a lawyer for the National Immigration Law Center in Los Angeles, said the law itself is clear.

"If you bring in a driver's license and a Social Security card, those documents are sufficient. Employers are prohibited from asking for extra documents or different documents," she said. "This is blatant discrimination, and we get calls about it all the time. We hope to see more lawsuits like this."
 
Badmus Advisory:  This case demonstrates how any employer, large or small, can cross the fine line between IRCA enforcement and discriminatory practices. We often hear from employers that they require new employees to produce certain documents such as a social security card or green card to complete the I-9 forms.  Unknowingly, these employers are going too far in the employment eligibility verification process, violating immigration discrimination rules and subjecting themselves to lawsuits like the one described in this story.
 
For more information and assistance with developing an effective immigration compliance policy and program that can save you thousands in fines  and penalties, you are invited to email or call Ann Badmus at annbadmus@badmuslaw.com, 469-916-7900.
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Badmus Law Firm is a law firm focusing on business immigration services to companies and individuals for over 15 years. Our attorneys help businesses like yours avoid the fines, penalties, and negative publicity of I-9 and other immigration violations. 

The problem for most businesses is that the I-9 form and other immigration forms are deceptively simple but the immigration rules behind the forms are enormously complex. Consequently, innocent mistakes are made that can cost businesses thousands in fines and an unwelcome induction into the ICE Hall of Fame.  Businesses that use our expertise and follow our Immigration Audit Defense Program can steer clear of these mistakes, protect themselves against Department of Homeland Security, the Department of Labor, and state agencies, and save themselves from hefty fines and public embarrassment.

Contact us to build an impeccable defense before government contacts you.  
 
Call 469-916-7900 or email ppowell@badmuslaw.com  to schedule a complimentary 30 minute assessment of your current compliance program and learn more about our Immigration Audit Defense Program. 
 
Badmus Law Firm is certified as a Women's Business Enterprise (WBE) by the Women's Business Council - Southwest (WBCS), a regional certifying partner of the Women's Business Enterprise National Council (WBENC). All of our attorneys are members of the American Immigration Lawyers Association, a national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.  For more information about our services, visit us at www.badmuslaw.com.
 

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The information in this newsletter has been provided as an educational service.  If you have specific questions or issues related to immigration, you are invited to call us at 469-916-7900 or email me at annbadmus@badmuslaw.com.
 
Until next time,
 
Ann Massey Badmus
Founding Attorney and CEO
Badmus Law Firm
NOTE: Immigration law changes frequently.  The resources and information provided in this newsletter are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes.  This information is not offered as, nor does it constitute legal advice or legal opinions.  Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation.  You should not act or rely upon the information in these articles without seeking the advice of an attorney.  To consult with Badmus Law Firm regarding your case, click here