Kennedy's Immigration Law Report : Iowa Immigration Lawyer & Attorney : Austin Kennedy : Brick Gentry Law Firm : Green Cards, Permanent Residency

It's no secret, chief among the many perks from an employer's perspective regarding the use of subcontractors is the fact that an employer is not required to verify an independent contractor's employment authorization documents through the I-9 process.  By extension, most employers assume that they don't have to worry about the ICE man knocking on their door, and the world of potential civil and criminal penalties associated with such a visit. 

Unfortunately, in far too many instances this assumption is dangerously incorrect.  In fact, according to the law of the land any person or entity who knowingly uses a contract, or subcontract or exchange entered into, renegotiated or extended after Nov. 6, 1986, to obtain the labor or services of an alien in the U.S. knowing the alien is unauthorized to work will be considered to have hired the alien for employment in violation of U.S. law. 

In other words, an employer's use of subcontractors is not a guarantee of immunity from immigration-related concerns, if the employer has reason to believe the workers lack proper authorization or if there is not a true independent contractor relationship in place.  Merely labeling a worker an "independent contractor", or utilizing boilerplate contractual language to the same effect is not going to save the employer's day.   In the near future we'll further explore the question of when an employer may be at risk for "knowingly" hiring unauthorized workers who were allegedly independent contractors, and also take a look at the way this area of the law factored in to the ICE raids at WalMart in 2003.      

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The deceptively short answer to this question is "No."  First, the rule of law:  Independent contractors are one of the three categories of workers exempt from the Form I-9 verification requirements.  The other two categories of workers exempted from the I-9 requirement are 1) employees hired before Nov. 7, 1986; and 2) casual domestic workers who perform sporadic, irregular, or intermittent service in private homes.  Now comes the complex reality of the situation--while an employer does not have to verify the employment authorization of independent contractors or laborers provided by an independent contractor, employers may NOT use independent contractors in order to circumvent immigration laws.  An employer can still be found liable if the employer has constructive knowledge of the unauthorized employment.  For more on this timely and important topic, please see my next post. 

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We here at Brick Gentry, PC, have an on-going in-house Continuing Legal Education (CLE) program, whereby all the attorneys take turns presenting on a different legal topic each month.  In addition to conveniently earning yourself a handy CLE credit, the in-house program is great because it helps you become aware of your colleagues' areas of speciality and brings to light interesting cross marketing possibilities that might otherwise fall to the wayside during a hectic work week. 

In December I presented a CLE entitled "The Employment-Based Path to Lawful Permanent Residency in the United States Through the Labor Certification Process".  Despite the clunky (albeit descriptive!) title, the CLE was very well received and a number of partners suggested that I post it as our firm's first free webinar.  We hooked up with Andrew B. Clark, who writes a cool marketing blog here, and Andrew really added a tremendous production value to the presentation I had written, the end result of which you see and can view and listen to below this very post! 

By way of a brief introduction, I should note that there are a number of commonly acknowledged ways someone can immigrate to the United States:  1) through a family member; 2) as an asylee or refugee; 3) through the visa lottery system; 4) through the EB-5 investment program (more coming on this soon); and finally 5) through an employment relationship.  It is this last category, the employment relationship, that serves as the focus of the webinar below.  More specifically, this webinar speaks to a situation where a U.S. employer has a valuable foreign national employee and the employer wants to be able to retain the foreign national employee in the U.S. on a "permanent" basis.  The most common way of helping this employee remain in the U.S. beyond their temporary status is through the labor certification process.  For a whole slew of additional details, see below!  And please keep an eye in the future here for additional webinars from Brick Gentry, PC. 

Brick Gentry P.C. – Labor Certification Presentation – Webinar January, 2011 from Brick Gentry P.C. on Vimeo.

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For those of you here in central Iowa who are involved with an immigration process, or soon to be, please note that the local USCIS Field Office in Des Moines has moved, ever so slightly.  The local USCIS field office is still located in the Neal Smith Federal building at 210 Walnut Street, in downtown Des Moines.  However, with the recent move now accomplished, all Application Support Center (ASC) appointments will take place in Room 101, which is located directly off the building's lobby on the first floor.  All INFOPASS and interview appointments must report to Room 215, which is located right next to the Skywalk entry.   

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Amid the hustle and bustle of the holiday season, the District of Columbia Court of Appeals in December issued an important and interesting ruling which held that an undocumented worker injured while working is eligible under D.C.'s statute to receive workers' compensation payments.

Like so many people in our current workforce, Palemon Gonzales originally obtained employment with Asylum Company, an entity who owned and operated the D.C. bar  where Gonzales worked, by using a fake identity and another person's social security number.  

Gonzales was working at the bar as a busboy on June 30, 2005, when a customer threw a bottle that hit Gonzales in the right eye, blinding him.  Gonzales had to have his dislocated lens reattached through surgery and he wasn't able to return to work until January 25, 2006.  The record is somewhat unclear as to when the employer came to know Gonzales was an undocumented immigrant, but in any case, the employer decided to not pay Gonzales' workers' compensation claim based largely on the argument that an illegal immigrant is ineligible for worker's compensation benefits.  

In ruling that the employer was in fact obligated to make workers' compensation payments to the illegal immigrant, the D.C. court focused largely on the fact that D.C.'s workers' compensation statute defines "employee" broadly, and in so doing makes no mention of "illegal aliens" or immigration status in general.  Importantly, the court also noted the strong public policy argument which supports undocumented workers' eligibility for benefits under the workers' compensation statute.  The court reasoned that if employers were not required to make workers' compensation payments to injured undocumented workers, then employers would have a strong economic incentive to hire undocumented workers.  Such a result would contravene the stated purpose of one of our primary immigration laws, the Immigration Reform and Control Act of 1986, which explicitly sought to deter employers from hiring undocumented workers.  Interestingly, the definition of an "employee" under Iowa's workers' compensation statute is very similar to the definition utilized in the D.C. statute.    

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Yesterday, Senate Majority Leader Harry Reid (D-NV) announced that he would attach the Development, Relief and Education for Alien Minors ("DREAM") Act to the Department of Defense authorization bill expected to come before the Senate, possibly as early as next week.  The DREAM Act will be considered as an amendment to the Defense Authorization bill because the DREAM legislation contains provisions which would improve military readiness.  While not the comprehensive immigration legislation many had hoped for, the DREAM Act addresses one of the most tragic aspects of our current immigration laws.  

The DREAM Act would address the plight of young immigrants who have been raised in the U.S. and managed to succeed despite the challenges of being brought to the U.S. without proper immigration documentation.  The legislation would offer a path to legal status to those who have graduated from high school, stayed out of trouble and plan to attend college or serve in the U.S. military for at least two years.  

"Kids who grew up as Americans should be able to get their green cards after they go to college or serve in the military," said Sen. Reid in support of the legislation.  

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In very general terms, the Labor Condition Application ("LCA") is a prerequisite process that must be completed and certified by the Department of Labor prior to the submission of a petition to classify a worker in H-1B, H-1B1 or E-3 status.  For more on the E-3 classification, see here.  

The LCA is basically an attestation by an employer seeing to hire a worker in one of the statuses listed above that four basic conditions of employment have been met:  1) the employer is paying the nonimmigrant at least the higher of the actual wage paid by the employer to others in the same occupation with similar experience and qualifications or the prevailing wage for the occupation in the geographical area of the worksite; 2) that the employment of the nonimmigrant will not adversely affect the working conditions of similarly employed workers; 3) that there is no strike, lockout or work stoppage in the occupation for which the nonimmigrant is being hired; and, 4) that notice of the hiring of the nonimmigrant has been provided.  

Recently, the DOL centralized the LCA process through the iCert web portal.  The relatively new on-line submission process is governed by a "first-in-first-out" rule.  However, processing times have varied. Based on a recent experience, it appears that LCA applications are taking 7 days to process.  

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President Obama recently signed a new law containing provisions which increase certain H-1B and L-1 petition fees.  The new law adds an additional fee of $2,000.00 for certain H-1B petitions and $2,250.00 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.  

The additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50% of its employees in the United States in H-1B or L status.  The additional fees apply when the employer is petitioning to initially grant the non-immigrant status to the alien OR to obtain authorization for an alien in H-1B or L status to change employers.  

The new fee is in addition to the base processing fee, the existing Fraud Prevention and Detention Fee, any applicable ACWIA fee and any premium processing fees.  

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The Office of Immigration Statistics recently released its Annual Report presenting information on the apprehension, detention, return and removal of foreign nationals in the United States during 2009.  The report is illuminating and helpful because it uses specific numbers to describe a concept (immigration enforcement) that is all-too-often described with a blur of heated generalities.  The report's key findings demonstrate that the following immigration enforcement activities took place in 2009:

• Department of Homeland Security (DHS) apprehended 613,000 foreign nationals, 86% of whom were natives of Mexico; 
• The number of foreign nationals apprehended by Border Patrol decreased by 23% between 2008 and 2009; 
• ICE detained approximately 383,000 foreign nationals; 
• 393,000 foreign nationals were removed from the United States--the seventh consecutive record high.  The leading countries of origin of those removed were Mexico (72%), Guatemala (7%), and Honduras (7 percent); 
• DHS removed 128,000 known criminal aliens (i.e., those who have a criminal conviction) from the United States; and
• 580,000 foreign nationals were returned to their home countries without a removal order.  

I'm definitely interested to see the details of 2010's Annual Report.  Contrary to what is commonly perceived, in many ways the Obama Administration has really ratcheted up immigration enforcement, though they've commonly used enforcement methods that don't generate the attention-grabbing 'RAID' headlines we saw so much of in 2008-2009.   

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