New Year's Resolutions to Ease Immigration Law Compliance
December 18, 2007
This article appeared in the San Francisco Daily Journal on Tuesday, December 18, 2007, page 6.
As the year closes, it is a perfect time to tell U.S. employers that the old mind-set about immigration compliance and enforcement must be thrown out.
2008 promises a brave new world of aggressive Department of Homeland Security enforcement that includes work site raids, criminal prosecutions, asset forfeitures, and, in many circumstances, mandatory enrollment in the government's eVerify employment verification program.
State governments, frustrated at the lack of action on the part of federal officials, are getting into the act, passing burdensome employment verification as well as immigration status reporting laws, all of which may or may not withstand court and constitutional scrutiny. Any employer that fails to take proactive immigration compliance action does so at its own peril and jeopardizes its business. Here are the top 10 immigration compliance resolutions that you should adopt for the coming year.
Resolution #1: We will acknowledge that the kinder, gentler government immigration enforcement of old — educating employers and imposing minor penalties and fines under the immigration statute — has been replaced by aggressive criminal prosecutions and work-site raids. We will adopt the new mind set that rigorous and serious enforcement against employers is the current reality.
Resolution #2: We will make our review and internal audits of our I-9 Forms, our Labor Condition Applications and our PERM files a top priority. We will be proactive rather than reactive. We will conduct regular internal audits and establish a clear chain of command within the company so that we are prepared should the government come knocking.
Resolution #3: If we receive a Social Security Match Letter, we will know what to do with it before we receive it. We will not stick it in a pile of papers or a back drawer. We will take some reasonable action to determine whether the cited individuals have the requisite immigration documentation. If they do not, we will terminate the employment within a reasonable period of time.
Resolution #4: We will implement immigration policies that govern our treatment of our employees. We will move beyond approaching immigration on a petition-by-petition basis. A comprehensive and consistent approach to immigration (rather than a case by case approach) will serve us better in today's immigration environment.
Resolution #5: We will involve General Counsel in our immigration policy and compliance efforts so that other areas of compliance — such as export control licensing, employment law and criminal defense — that may relate to or overlap with immigration are considered in a company-wide approach to compliance.
Resolution #6: We will review our relationships with contractors to ensure that, from both an immigration and an employment law standpoint, they are actually independent contractors and not employees whom we control.
Resolution #7: For those who are independent contractors, we will have contract language in place that covers immigration compliance and that indemnifies us for any penalties or violations by those contractors.
Resolution #8: We will clearly articulate throughout our organization that we prize and expect immigration compliance, both for our own employees and for the employees of our contractors.
Resolution # 9: We will get involved in telling our government officials and community leaders that we need change in the immigration laws to allow us to compete in the global market of hiring and retaining talented employees. We will provide specific examples to help our lawmakers help us secure a lawful workforce. We will explain why they need to adjust the laws now to provide us with the lawful workers we need when we need them.
Resolution #10: We will wake up and join the new immigration world. We will throw out the old attitude that immigration is just filling out simple forms for employees in order to secure work permits. Our new immigration approach will involve taking proactive steps in implementing a comprehensive system and policy that includes strict corporate compliance, training, audits, interdisciplinary teams and advocacy.
Here's to a more promising immigration environment in 2008.
Kirsten Schlenger is a founding partner of Weaver, Schlenger & Mazel in San Francisco, a firm which limits its practice to Immigration and Nationality Act law. She is certified as a Specialist in Immigration and Nationality Act Law by the California Board of Legal Specialization of the State Bar of California.