Regardless of an attorney’s area of practice, immigration-related questions arise. Lawyers often are unfamiliar with the basic framework of immigration law needed to prevent clients from making costly mistakes. While clients’ particular immigration-related legal needs vary greatly, the following are eight key warnings that attorneys must be prepared to offer them.
1. Warn clients about the immigration consequences of guilty pleas. In Kentucky v. Padilla (2010), the U.S. Supreme Court held that the Sixth Amendment requires defense counsel to advise noncitizen clients of the risk of deportation arising from a guilty plea. Failure to properly advise on the immigration consequences may constitute ineffective assistance of counsel.
2. Advise clients regarding employment eligibility and the completion of Form I-9. All employers must complete Form I-9 and review identity and employment-eligibility documents for new hires. While completing a short form sounds simple, many employers do not complete the form properly; they could face significant civil (and potentially criminal) penalties for these errors. No lawyer should assume a client’s business is doing this correctly. Training, policies and procedures, as well as independent third-party audits, are vital to immigration compliance.
3. Prepare clients for the potential that Immigration and Customs Enforcement (ICE) may come knocking. Starting in 2008, ICE began to shift its strategy on employer enforcement away from heavily publicized worksite raids. Instead, ICE began to focus on employer compliance through Form I-9 audits, civil penalties and criminal prosecutions. As the number of ICE audits increase, businesses will continue to face greater immigration scrutiny.
4. Inform clients that E-Verify is here to stay. E-Verify is an internet-based database run by DHS that allows businesses to determine the employment eligibility of new hires. Federal contractors are required to enroll and utilize the system, and many states now require E-Verify participation. While Congress continues to struggle with comprehensive immigration reform, the one element that continues to appear in proposed legislation is the expansion of E-Verify.
5. Don’t forget immigration compliance in mergers and acquisitions. Immigration law issues often are an afterthought for attorneys handling due diligence in mergers and acquisitions. But the buyer inherits improperly completed Form I-9s and unauthorized employees, regardless of the type of purchase. Buyers should consider requiring a partial or full independent third-party audit to determine the potential civil or criminal liability the buyer would be assuming.
6. Advise clients that EB-5 investor capital and green cards are not free. The EB-5 program allows foreign investors to become permanent residents (aka green card holders) by investing capital into a U.S. entity and creating jobs for U.S. workers. The general public has become aware of the EB-5 immigrant investor program as the number of regional centers has increased exponentially since 2008.
A regional center is an economic entity designated by U.S. Citizenship and Immigration Services (USCIS) that is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. When businesses inquire about the potential of utilizing EB-5 capital, lawyers should caution them regarding the strict rules governing the use of the capital and job creation requirements.
7. Don’t tell clients that DACA work authorization is automatic. Starting on Aug. 15, USCIS began accepting applications for deferred action for childhood arrivals (DACA). DACA is neither a visa nor an immigration status. DACA is a discretionary determination by the federal government to defer pursuing deportation against an individual as an act of prosecutorial discretion. The approval of the underlying deferred action application does not bestow employment authorization. Rather, DACA beneficiaries must also request and be approved for an employment authorization document (EAD) in order to be eligible to work.
8. Warn clients that compliance doesn’t stop with the visa. Clients need to keep USCIS updated when material facts change. As part of USCIS, the Office of Fraud Detection and National Security (FDNS) is tasked with deterring and identifying fraudulent USCIS filings. In July 2009, FDNS implemented the Administrative Site Visit and Verification Program to conduct unannounced site inspections to verify information contained in petitions for H-1B (specialty occupation), L-1 (intracompany transfer), and R-1(religious) workers, among others.
When the FDNS conducts a site visit and cannot verify the details of the employment as originally provided, the underlying approval may be revoked and the employer penalized. Businesses must notifyUSCIS of changes in material facts relating to the employment of the H-1B or L-1 worker, such as significant changes in job duties or a change in work location or if the foreign national is terminated.
While the winds of politics swirl over comprehensive immigration reform, the current law acts as an unnoticed cloudbank on an otherwise nice day. In whatever area a lawyer practices (family, criminal, employment, business, mergers and acquisitions, finance, estate planning or international), the immigration compliance cloud hangs over clients. Clients need to be prepared and forewarned to avoid the flu from a cold rain or worse, being pelted by ICE.