Continuing legal education presentation to Dallas Bar Associations Labor & Employment Law section on May 18, 2009

1. Immigration Updates Every
Employment Lawyer Must Know
Presented by Ann Massey Badmus, Esq.
New Age of Enhanced Enforcement

2. §274A of Immigration and Nationality Act (INA)
Employers/Businesses
• Must not knowingly hire, recruit, or refer for a fee any
individual who is not authorized to work in the United
States.
• Must not continue to employ an undocumented
worker or one who loses authorization to work.
• Must not contract or subcontract to obtain labor of
known unauthorized aliens
New Age of Enhanced Enforcement
• Department of Homeland Security –
Immigration and Customs Enforcement
(ICE)
• Department of Labor (DOL)
• Department of Justice (DOJ) – Office of
Special Counsel
• Department of State (DOS)
• States and Municipalities

3. Enforcement Measures
• Final Orders for Civil Monetary Penalties
• Administrative Fines
• Administrative Arrests
• Criminal Arrests
• Criminal Fines and Forfeitures
Civil Penalties
I-9 violations - $110 to $1110 for each violation
Unauthorized employment for offenses
occurring on or after March 27, 2008:
• $375 to $3200 – 1st offense
• $3200 to $6500 – 2nd offense
• $4300 to $16000 – more than 2 offenses
8 C.F.R. §274a.10

4. Criminal Penalties
Under INA §274A, employers engaged in a
pattern or practice of knowingly hiring or
continuing to employ unauthorized may be
fined up to $3000 for each unauthorized alien
and/or imprisonment for up to six months for
entire pattern or practice.
Other criminal charges – alien smuggling,
alien harboring, document fraud, money
laundering, fraud or worker exploitation
Administrative Arrests
•Non-citizens only
•Initial step in removal of unauthorized alien
•Civil violations of the INA only

5. Criminal Arrests
•Non-citizens and citizens
•Various offenses including illegal hiring,
identity theft, alien harboring
•Asset forfeiture
•Department of Justice, not ICE

6. New Direction?
“ICE will focus its resources in the worksite
enforcement program on the criminal
prosecution of employers who knowingly hire
illegal workers in order to target the root cause of
illegal immigration. ICE will continue to arrest and
process for removal any illegal workers who are
found in the course of these worksite
enforcement actions in a manner consistent with
immigration law and DHS priorities. Furthermore,
ICE will use all available civil and administrative
tools, including civil fines and debarment, to
penalize and deter illegal employment.”
Employment Verification
• Hire only those persons authorized
to work in the United States
• Ask ALL new employees to show
documents that establish both
identity and work authorization
• Complete form I-9 for every new
employee - regardless of
nationality
• Re-verify when required

7. Constructive Knowledge
Defined as “knowledge which may fairly be inferred
through notice of certain facts and circumstances
which would lead a person, through exercise of
reasonable care, to know about a certain
condition.”
8 C.F.R. §274a(1)(l)
Examples of Constructive Knowledge
• Failure to fill out I-9 form
• Failure to re-verify form
• Information that an employee is not authorized
• Failure to reconcile conflicting information
• Hire contractors that you know uses unauthorized
workers
• Social Security No-match letters (pending litigation)

8. Electronic Verification - E-Verify
• Web-based formerly known as “Basic Pilot
Employment Verification Program”
• USCIS and Social Security Administration
• Voluntary participation – for some employers
• Supplement to I-9 verification – not a substitute
E-Verify Numbers to Think About
Errors in the database that E-Verify checks to
determine work authorization:
• 17.8 million: number of discrepancies in the SSA
database
• 1 in 25: number of new hires that would receive a
tentative non-confirmation based on error rates
• 11,000: number of workers per day who would be
flagged as ineligible for employment if E-Verify were
mandatory for all employers
• 96% accuracy rate

9. Who is required to E-Verify
• Federal agencies
• Federal contractors
• Certain State agencies and private
employers
• Companies located in states that require
E-Verify
• Employers of STEM F-1 students seeking
OPT extension
Federal Regulations
• Executive Order signed on June 6, 2008 by
President Bush
• Regulations effective January 19, 2009 and
applicable June 30, 2009

10. • Federal departments and agencies within
the executive branch (already enrolling with
E-Verify to check the status of all new hires
within the federal workforce)
• Businesses and companies contracting
services in the United States for the federal
government
Expansion of E-Verify
E-Verify set to sunset on September 30, 2009,
however –
$112 million request for E-Verify in President’s budget for
development, oversight, training, technical
improvements
Pending Bills to expand electronic verification
LEAVE Act (HR 994) and Employee Verification Act (HR
1096)

11. Immigration Reform and Control Act (IRCA)
IRCA prohibits employers with four or more
employees from discriminating because of
citizenship status against U.S. citizens and
certain classes of foreign nationals (permanent
residents, temporary residents,
asylees/refugees) authorized to work in the
United States with respect to hiring, referral, or
discharge.
Anti-Discrimination Rules
Department of Justices agencies -
Office of Special Counsel (OSC)
http://www.usdoj.gov/crt/osc
Equal Employment Opportunity Commission
DOJ state partnerships

12. Anti-Discrimination Rules
• Unequal treatment because of citizenship or
immigration status
• Unequal treatment because of nationality, which
includes place of birth, appearance, accent and
language
• Having a citizen-only hiring policy
Anti-Discrimination Rules
Document Abuse –
• Asking for specific documents from
employee, such as “Green Card”
• Verifying some people’s documents and
not others
• Re-verifying when not required
• Selective application of E-Verify

13. Anti-Discrimination Rules
National origin discrimination cases on the rise
– Title VII and the other antidiscrimination laws prohibit
discrimination against individuals employed in the United
States, regardless of citizenship.
– In Fiscal Year 2008, EEOC received 10,601 charges of
national origin discrimination. Including charges from
previous years, 8,498 charges were resolved, and
monetary benefits for charging parties totaled $25.4 million
(not including monetary benefits obtained through
litigation).
State Immigration Laws
Over 20 states have enacted laws
making it illegal for businesses to
hire and employ unauthorized
immigrants.

14. Arkansas
Any business that has a contract with the State must
certify that they do not employ or contract with any
unauthorized immigrants. Penalties for unauthorized
employment included actual damages and
cancellation of contract.
Louisiana
It is unlawful to employ, hire, recruit, or refer any
alien who is not legally entitled to reside or work in
the United States. Louisiana’s provisions apply to
individuals as well as business entities. Penalties
include loss of business license and $10000 fine.

15. Oklahoma
•All contractors and subcontractors for physical
services must verify the work authorization of their
employees if they have contracts with a public
employer.
•To receive State contracts, contractors and
subcontractors must participate in E-Verify to verify all
information of new employees.
•If an employer in Oklahoma fires an employee,
while at the same time, continues to employ an
unauthorized immigrant, the fired employee may sue
the employer for unfair trade practices.
Texas – pending legislation – H.B. No. 4486
• Requires E-Verify if contracting with state
agency for services
• Establishes national origin discrimination if
employer discharges a USC or LPR and
retains an unauthorized alien in same job
category

16. Contractor Compliance
• IRS definitions apply
• Cannot use contractors or leasing to
transfer compliance responsibility
• Require I-9 compliance in contracts
• Include indemnification clauses in
contracts for contractor
non-compliance
Department of Labor Enforcement
•DOL enforces federal labor laws irrespective of
immigration status
•DOL will only inspect I-9 forms in conjunction with
labor standards enforcement only in directed
investigations, not complaint-based investigations
•INA §274A(b)(3) requires employers to make I-
forms available to DOL for inspection
•Serious violations of employment eligibility
verification rules referred to ICE

17. Department of Labor Enforcement
Special Visa Programs
Employment of foreign nationals under special visa
programs, such as H-1B and H-2A visas, also may be
subject to certain requirements related to wages,
working conditions, or other aspects of employment.
The Wage and Hour Division of DOL investigates
alleged violations of some visa program
requirements, including H-1B and H-2A visa
requirements
Department of Labor Enforcement
H-1B Visas Requirements
•Prevailing Wage
•Benching
•Change of Location or job duties
•Mergers & Acquisitions
•Recordkeeping

18. Termination of Employment
Return Air Fare to Home Country. Obligation of employer to
pay reasonable costs if it terminates the H-1B employment
early. Employee only, not family or belongings.
Notification to the US Citizenship & Immigration Services.
Employer must notify USCIS immediately, otherwise, there may
be continuing obligation to pay H-1B employee.
No temporary layoff. H-1B employees cannot be benched or
temporarily laid off for lack of work. Employer is obligated to
pay even if work is not available.
Immigration Compliance Plan
• Written procedures and policies
• Internal Audits and Third-Party Audits
• Training and Supervision
• Contractor compliance
• Response to audit and enforcement
actions

19. Written Policy
• I-9 procedures
• E-Verify
• Social no-match letters
• Violations reporting and investigations
• Training
• Multiple locations
• Recordkeeping and electronic
storage
Compliance Audits
• I-9 forms and procedures
• LCA
• PERM files
• H-1B dependency
• Public access files
• Anti-discrimination
• No-match letters

20. Training and Supervision
• Employment eligibility (I-9) rules
• Anti-discrimination rules
• E-verify procedures
• H-1B and PERM recordkeeping
• Contractors
• Annual, quarterly training
• Supervisor reviews and checks
Immigration Counsel
• Develop written compliance plans
and audit safeguards
• Conduct third-party compliance
audits
• Develop contractor compliance
and termination policies
• Conduct training and reviews
• Advise before immigration-related
hiring or firing
• Representation during enforcement
actions along with employment and criminal
attorney

21. QUESTION AND ANSWER
SESSION
Thank You!
Badmus Immigration Law Firm, P.C.
12700 Park Central Drive
Suite 1910
Dallas, Texas 75251
469-916-7900 Telephone
469-916-7901 Facsimile
www.badmuslaw.com
immigration@badmuslaw.com