Global Mobility & Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Mobility & Immigration Counsel

By Erin Shackelford

As reported by China Briefing, the Beijing Public Security Bureau (BPSB) recently began a three-month campaign designed to cut back the number of foreigners living and working illegally in China. Among other planned actions, BPSB will check key neighborhoods and subject visa applications to closer scrutiny. This campaign stresses the importance for foreign nationals working in China to ensure they have proper approval to work in the country and double check that their necessary documentation is current. Also, employers are urged to seek legal advice when hiring foreign nationals to work in China, to ensure that all necessary steps are taken.

Below is a brief overview of the process for obtaining authorization to work and live in China:

1. An employer desiring to hire a foreign national obtains an Employment License of the People’s Republic of China from the respective Administrative Center for Employment of Foreigners.
2. The potential employee visits the Chinese Embassy in his or hertheir home country to obtain a Z visa.
3. Upon entering China, the employee obtains a health certificate after inspection at the Enter and Exit Inspection and Quarantine Center.
4. Employer applies for a work permit at the respective Administrative Center for Employment of Foreigners.
5. Employee applies for a residence permit at the Exit-Entry Administration Bureau.
6. After review, Entry-Exit Administration Bureau delivers passport with affixed residence permit to employee.

• Print
• Trackbacks
• Share Link

On September 28, 2011, U.S. Immigration and Customs Enforcement (ICE) announced that it arrested more than 2,900 convicted criminal aliens and fugitives during a 7-day “Cross Check” enforcement operation. The operation was carried out in all 50 states and four U.S. territories by ICE officers and agents in coordination with local, state and federal law enforcement agencies. All detained individuals had prior criminal convictions; more than half for felony violations. Additionally, 681 individuals were fugitives who had previously been ordered to leave the country but failed to do so; 386 individuals had previously been removed from the country multiple times and had illegally re-entered the U.S.

• Print
• Trackbacks
• Share Link

Alabama is now the most recent state to require all employers to enroll in and verify employment eligibility through E-Verify. This requirement goes into effect on April 1, 2012. The new law prohibits all Alabama employers, public and private, from knowingly employing unauthorized aliens. Additionally, the law prohibits state government entities from awarding contracts or providing grants or other incentives to employers that fail to enroll in and verify employment eligibility through E-Verify. This provision goes into effect on January 1, 2012. Violations of the law can result in significant penalties for employers. The new law also creates a state law cause of action for U.S. citizens and authorized aliens against employers that refuse to hire or that discharge them while knowingly or negligently employing unauthorized aliens. To learn more about the new law and its implications for employers, please continue reading Littler's ASAP Alabama Is Latest State to Enact E-Verify Requirement by Kelly Reese.

• Print
• Trackbacks
• Share Link

Rep. Sue Wilkins Myrick (R-NC) has reintroduced legislation that would amend the Immigration and Nationality Act to substantially increase employer penalties for violations. The 10k Run for the Border Act (H.R. 1698) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known.

Under the terms of this bill, an employer could be fined between $10,000 and $80,000 for each violation, an increase from the current $250-$2,000 penalty range. For an employer with a prior violation, the penalties would be increased to between $80,000 and $200,000, up from $2,000 to $5,000 per violation under current law. For a repeat offender, the fine skyrockets to a range of $120,000 to $1.6 million. The current fine for such a repeat offense is a minimum penalty of $3,000 and a maximum of $10,000.

If state or local law enforcement officials provide material assistance in investigating or prosecuting employers that are in violation of this law, they are entitled to 80 percent of the fines paid by those employers. It follows that such large financial incentives would increase enforcement.

The provisions of this amendment would take effect on the day of enactment. Prior versions of this bill have been introduced within the past six years, but have failed to advance.

Photo credit: Kameleon007

• Print
• Trackbacks
• Share Link

The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.

Photo credit: MBPhoto, Inc.

• Print
• Trackbacks
• Share Link

A recent report by Reuters highlights the possible correlation between the demand for pilfered identities and employers’ increased efforts to verify employees’ immigration status, e.g., by using E-Verify. Starting in 2009, federal immigration enforcement efforts have targeted employers rather than workers, and many businesses have been intensifying their efforts to ensure the legality of their workforce. The E-Verify program identifies mismatched names and Social Security numbers but is not designed to flag stolen identities. Accordingly, some undocumented workers have moved away from using their real name and an illegitimate Social Security number and, instead, are purchasing and using stolen names and their accompanying Social Security numbers.

• Print
• Trackbacks
• Share Link

On January 5, four Republican Congressmen, along with 26 co-sponsors, introduced H.R. 140, the Birthright Citizenship Act of 2011. This bill would amend the Immigration and Nationality Act’s birthright citizenship requirements (8 U.S.C. § 1401) so that individuals born in the United States will be granted citizenship only if at least one parent is:

• a U.S. citizen or national;
• a lawful U.S. permanent resident; or
• an alien performing active service in the armed forces.

• Print
• Trackbacks
• Share Link

On September 29, 2010, Senator Orrin Hatch (R–UT) introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S.3901) (pdf). The bill is the third notable piece of immigration legislation introduced last week, together with the comprehensive immigration reform bill introduced by Senators Menendez and Leahy, and Senator Chambliss’ HARVEST Act (relating to agricultural workers). Senator Hatch’s bill addresses numerous immigration enforcement topics, and notable provisions include:

• Illegal aliens could only be paroled or granted deferred action on a case-by-case basis (for urgent humanitarian reasons or significant public benefit). Mass paroles and deferrals would be prohibited.
• Any state, county, city, or township that is eligible to participate in the Secure Communities program or to cross-designate local law enforcement officers to perform immigration law enforcement functions under section 287(g) (pdf) and does not participate in such programs may not receive compensation for incarceration expenses of illegal aliens.
• Individuals known or reasonably believed to be members of a known criminal organization regularly engaged in transnational criminal activity would be ineligible for visas.
• Elimination of the Diversity Visa Program, unless Congress signs off on changes designed to combat fraud and eliminate abuse in the program.
• Annual reporting by the Secretary of Health and Human Services on welfare benefits provided to states, and the portion thereof provided to illegal immigrants.
• Limiting states’ expansion of the Children’s Health Insurance Program (CHIP) coverage to noncitizen children or noncitizen pregnant women.
• Requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

• Print
• Trackbacks
• Share Link

On September 29, 2010, Senators Robert Menendez (D–NJ) and Patrick Leahy (D–VT) introduced “The Comprehensive Immigration Reform Act of 2010” (S. 3932). According to Senator Menendez, the bill “addresses long-standing, wide-ranging flaws in the immigration system that have been priorities of groups on each side of the immigration reform debate.” The bill was introduced shortly before Congress adjourned for its mid-term election recess. As reported by The Hill, Senator Menendez defended his timing for introducing the bill by stating that it could lead to possible “lame-duck movement” on the legislation, and in the longer term it serves as an "invitation to bring Republican colleagues to discussion" on immigration reform.

• Print
• Trackbacks
• Share Link

On September 21, 2010, a cloture motion on the National Defense Authorization Act for Fiscal Year 2011 (S. 3454) fell four votes shy of the 60 required to advance the measure in the Senate. Senate Majority Leader Harry Reid (D–NV) intended to include the Development, Relief and Education for Alien Minors Act (DREAM Act) (S. 729) as an amendment to the bill. Also included in the defense bill was a provision to repeal the U.S. military’s “don’t ask, don’t tell” policy.

The DREAM Act is supported by President Obama, various business groups and the AFL-CIO. The Act would provide six years of conditional permanent residency to certain undocumented minors who have completed high school and go on to join the military or attend college for at least two years.

All Republican senators—save for Lisa Murkowski (R-AK), who did not vote—voted against the motion. Two Democrats, Senators Blanche Lincoln (D-NE) and Mark Pryor (D-NV), also cast votes against the motion. As a procedural safeguard, Senator Reid cast a “no” vote in order to retain the right to bring the motion up for vote again.

• Print
• Trackbacks
• Share Link

Proposed legislation in Pennsylvania and New Jersey would impose stricter work authorization verification requirements on employers.

Pennsylvania

House Bill 1502 would require all contractors and subcontractors on public works projects to verify the employment eligibility of new employees through E-Verify, the federal electronic employment verification system, and to verify existing employees’ Social Security numbers. In June 2010, this bill was referred to the House State Government Committee.

House Bill 1503 would require all construction industry employers to verify the employment eligibility of new employees through E-Verify and to verify existing employees’ Social Security numbers. This bill was passed by the House in June 2010 and is currently in the Senate Labor and Industry Committee.

Employers that in good faith rely on federal programs (E-Verify and the Social Security Number Verification Service) to verify new employees’ legal work status and existing employees’ Social Security numbers will be immune from sanctions. However, employers face debarment from public work contracts (HB 1502) or license forfeiture (HB 1503) for noncompliance. Additionally, employers could face civil liability for retaliating against employees who complain about alleged violations or participate in investigations, hearing or inquiries concerning alleged violations.

• Print
• Trackbacks
• Share Link

Since October 2009, U.S. Immigration and Customs Enforcement (ICE) has levied over $600,000 in fines against Texas businesses for immigration-related violations ranging from incomplete I-9 records to employment of illegal immigrants, reports the Houston Chronicle. The largest fine ($360,000) imposed on a single business stemmed from an investigation commenced by the Bush administration in 2008. The newspaper’s review of federal records revealed a focus on fining employers rather than arresting undocumented workers, reflecting the Obama administration’s new immigration enforcement strategy that focuses on employer culpability through audits.

• Print
• Trackbacks
• Share Link

With the July 2, 2010 submission deadline approaching, individuals in Washington are trying to collect 241,153 signatures to place an immigration-related measure on the November ballot, reports the Seattle Times. Employment-related provisions of proposed initiative I-1056 (pdf) include:

• Requiring all employers, after making an offer of employment, to verify the individual’s eligibility to work in the United States, using programs such as E-Verify.
• Making it an unlawful employment practice to terminate a U.S. citizen, or a permanent resident applying for naturalization, when an illegal alien is employed at the same job site or in a similar position at a different site.

Since 2006, similar measures have failed to get certified, and the chances for a 2010 measure are slim, given the campaign’s lack of funds and the absence of major party support for the measure.
 

• Print
• Trackbacks
• Share Link

The New York Times reports that the Massachusetts Senate has voted 28 to 10 in favor of an immigration-related amendment (pdf) to the state budget bill that would require state contractors to verify that their workers are legally authorized to live and work in the United States. The proposed law also would penalize contractors violating the law by prohibiting them from doing business with the state. Additionally, the state attorney general’s office would be required to set up a hotline by which people could anonymously report alleged hiring of illegal immigrants, and to investigate such allegations.

• Print
• Trackbacks
• Share Link

The Washington Post reports that acting Solicitor General Neil Katyal has submitted a brief (pdf) on behalf of the Obama administration urging the U.S. Supreme Court to review and invalidate the Legal Arizona Workers Act (LAWA), a 2008 law that imposes sanctions far greater than those prescribed by federal law on employers that hire illegal immigrants (Note: LAWA is a different law than Arizona’s recently enacted and controversial immigration enforcement law.). The petition (pdf) for Supreme Court review was originally filed by a coalition that includes the U.S. Chamber of Commerce, civil libertarians and Latino groups.

The brief presents the administration’s position that federal law preempts this state law, and argues that upholding the law would:

"disrupt a careful balance that Congress struck nearly 25 years ago between two interests of the highest importance: ensuring that employers do not undermine enforcement of immigration laws by hiring unauthorized workers, while also ensuring that employers not discriminate against racial and ethnic minorities legally in the country."

• Print
• Trackbacks
• Share Link

Arizona Governor Jan Brewer has signed into law an immigration enforcement bill generally acknowledged to be the “broadest and strictest immigration measure in generations.” The bill has attracted national attention, even drawing strong criticism from President Obama who, according to The Daily Telegraph, has instructed the U.S. Department of Justice to examine the measure’s legality.

• Print
• Trackbacks
• Share Link

Coastal Steel and Acoustics became the first company in South Carolina to sign an IMAGE agreement (Immigration and Customs Enforcement Mutual Agreement between Government and Employers), the agency announced. By signing the agreement, the company:

• will receive agency-provided training and education on fraudulent document detection, as well as on proper hiring and anti-discrimination procedures;
• can use E-Verify, the federal electronic employee verification system, and the Social Security Number Verification Service; and
• can become “IMAGE certified” by following the Department of Homeland Security’s Best Employment Practices.

IMAGE was initiated in 2007 to combat unlawful employment and reduce vulnerabilities that help illegal immigrants gain employment in the United States.

• Print
• Trackbacks
• Share Link

The New York Times reports that Arizona legislators have given preliminary approval to legislation that primarily concerns State enforcement of federal immigration laws. H.B. 2632, which is nearly identical to a bill passed in February by the state senate (S.B. 1070), would, among other things, allow police officers to charge illegal immigrants with criminal trespassing based solely on their presence in Arizona. The two bills must now go through reconciliation, which is expected to occur within the next two weeks.

• Print
• Trackbacks
• Share Link

Last Thursday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) released a framework for comprehensive immigration reform. Although a bill has yet to be introduced, the Senators outlined their “four pillar” reform strategy in a Washington Post opinion column. This plan would include “requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.” For more information on this development, please continue reading at Littler's Washington D.C. Employment Law Update blog.

• Print
• Trackbacks
• Share Link

This week, Rep. Frank Kratovil (D-MD) introduced the “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627). The bill amends section 274A of the Immigration and Nationality Act (8 U.S.C. § 1324a(e)(4)(A)) by establishing criminal penalties—and increasing the existing civil penalties—that can be levied against individuals with “hiring authority” who employ unauthorized aliens.

• Print
• Trackbacks
• Share Link

Rep. Kenny Marchant (R-TX) introduced the Mortgage E-Verify Act (H.R. 4586), which requires that mortgagors’ legal immigration status be confirmed by E-Verify as a condition for modification of home mortgage loans issued by Freddie Mac and Fannie Mae, or insured by the Federal Housing Administration. The bill aims to curb mortgage fraud, particularly by illegal immigrants. Mortgage fraud increased 1,411% from 1997 to 2005, according to the U.S. Treasury Department’s Financial Crimes Enforcement division.

• Print
• Trackbacks
• Share Link

By 2011, Malaysians might be required to obtain a visa in order to enter the United Kingdom, according to The Star Online. Presently, Malaysians may visit the U.K. for up to six months without a visa. However, the U.K. is considering rescinding Malaysia’s visa-free status due to the high number (an estimated 20,000) of Malaysian nationals overstaying and working illegally. If this occurs, Malaysian visa applicants will need to pay a nonrefundable processing fee of 1,200 Ringgits (approximately 350 USD; 220 GBP).

• Print
• Trackbacks
• Share Link

On December 9, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano confirmed her stance that immigration enforcement is a necessity and must be achieved in conjunction with comprehensive reform of the United States’ broken immigration system. Secretary Napolitano stated, "We can no longer perpetuate a status quo that is unacceptable for workers, employers, law enforcement, faith leaders, and America as a whole. We must seize this moment to build a truly effective immigration system that deters illegal immigration, provides effective and enduring enforcement tools, protects workers from exploitation and retaliation, and creates a tough but fair path to legalization for the millions of illegal immigrants already here."

This statement, made at a Senate Judiciary Committee oversight hearing, reiterates the position of the Obama Administration and its intent to present a proposal for comprehensive immigration reform to Congress in early 2010.

• Print
• Trackbacks
• Share Link

The U.S. Supreme Court has asked the Solicitor General to submit a brief outlining the Obama administration’s stance on an Arizona law that punishes companies for hiring illegal immigrants, the Miami Herald reports. The justices will review this brief before deciding whether to hear a challenge to the law.

• Print
• Trackbacks
• Share Link

Examiner.com reports that California’s legislature has passed a non-binding resolution condemning federal immigration policies, practices and enforcement. The resolution, drafted by California State Senator Gilbert Cedillo, urges Congress and President Obama to declare a moratorium on immigration policies and practices until comprehensive immigration reform is enacted.

Although the resolution has no legal effect, opponents contend that a moratorium would negatively impact public safety. Anti-immigration advocates assert that the resolution’s sentiment does not represent that of the majority of Californians and that illegal immigrants would benefit from the proposal.

The resolution notes the financial contributions of immigrants (documented as well as undocumented), while criticizing various actions such as employer audits and, particularly, the E-Verify system. 

• Print
• Trackbacks
• Share Link

The Dallas Morning News reports that Homeland Security Secretary Janet Napolitano remains optimistic that Congress eventually will pass a bipartisan immigration-policy overhaul bill. However, because the White House and Congress are consumed with healthcare legislation, Napolitano could not predict when a bill would be introduced. Nevertheless, she believes the process will be less contentious than previous attempts during the Bush administration.

Napolitano stated that immigration legislation needs to focus on the following:

• Developing or strengthening penalties for employers that repeatedly hire illegal immigrants;
• Countering new tactics used by human traffickers and money launderers to exploit the border;
• Developing programs that allow seasonal workers to enter the U.S. legally; and
• Updating the visa process so that students with skills needed by the U.S. can remain in the country.

Napolitano expressed her opposition to amnesty, stating that she favors an approach allowing illegal immigrants to pay fines and taxes without incurring criminal liability.

• Print
• Trackbacks
• Share Link

The New York Times reports that President Obama’s approach to immigration enforcement has remained similar to that of his predecessor. Employee paperwork audits have been conducted at hundreds of businesses and prosecutions for immigration violations have increased. E-Verify, the federal program that allows employers to check applicants’ work authorization status, has been expanded, as has a cooperative program between federal, state, and local officials that runs immigration checks on individuals booked at certain local jails.

The reliance on holdover policies has upset immigrant and Latino advocates, key supporters of Obama’s election, who believed the new administration would take a different, less harsh approach. Although administration officials state that they have backed away from unpopular mass factory roundups of illegal immigrants, advocates contend that the administration’s continuation of existing programs will result in further ethnic profiling and civil rights violations.

As previously discussed, Democrats are planning to introduce an immigration reform bill sometime this year or in early 2010. Anticipating a legislative battle, influential party members have suggested members alter their language when discussing the issue—e.g., abandoning the term “undocumented” in reference to illegal immigrants—to demonstrate their commitment to preventing illegal immigration and strengthening immigration enforcement.

• Print
• Trackbacks
• Share Link

As reported by China Daily, police in the Chinese city of Guangzhou have been closely monitoring residential and business areas inhabited by foreigners, looking for individuals without stay permits or holding fake passports. Concerns over illegal immigration, particularly crimes committed by foreigners, have resulted in police stepping up efforts to curb the practice. Officials from Guangzhou Intermediate People’s Court said that one-third of fraud cases between 2002 and 2008 were committed by foreigners.

The police campaign has caused tension in the city’s African communities, resulting in protests over an unconfirmed death of a Nigerian man during a passport check. Police officials have only confirmed two injuries; one involved a man allegedly involved in illegal money operations who injured himself as he attempted to evade a passport check.

Each year, over one million people enter or exit through the ports of Guangzhou, a major trading hub for foreigners, especially from the Middle East and Africa. A local university estimates that over 20,000 Africans with valid travel documents reside in the area, although the overall number is higher because many do not have visas.

To assist foreigners, the entry and exit administrative authority opened an online service where they can apply for permit extensions. Foreigners traveling or residing in the area should always carry their passports and comply with registration procedures.

• Print
• Trackbacks
• Share Link

President Barack Obama has asked Homeland Security Secretary Janet Napolitano to meet regularly with members of Congress in order to systematically resolve various immigration issues, including treatment of the 12 million illegal immigrants currently in the country and prevention of illegal immigration going forward. As reported by Reuters, statements by Obama and by various lawmakers emphasize the urgent need to enact immigration reforms soon.

Following a recent meeting with Republican and Democratic lawmakers, Obama told the press, “Despite our inability to get this passed over the last several years, the American people still want to see a solution.” Also following the meeting, Senator Charles Schumer (D-NY) stated that Obama has set a goal of passing legislation by the end of 2009 or early 2010. Senator Lindsey Graham (R-SC) stated that, due to the political heat caused by immigration issues, he sees only “one more chance” to enact legislation:

If we can't get it done this time around, no politician is going to take this up in a generation. That would be a shame for this country.

• Print
• Trackbacks
• Share Link

As reported in The Los Angeles Times, the E-Verify program recently received a few boosts, with the Obama administration announcing that it wants Congress to allocate an additional $12 million to the program in the next fiscal year (bringing its budget to $112 million) and Department of Homeland Security Secretary Janet Napolitano stating in a congressional hearing that E-Verify was "a cornerstone of workplace enforcement across the country." Almost 125,000 businesses are signed up for the E-Verify program. Some argue, though, that E-Verify will not solve the issue of illegal immigration and that expansion of the program would only push more undocumented workers underground. Others generally support E-Verify but criticize the program’s accuracy rate. The government reports that E-Verify has a 96% accuracy rate, and Napolitano has stated that the government plans to improve the accuracy of the databases.

• Print
• Trackbacks
• Share Link

As reported at Stateline.org, a new report  finds that the estimated 12 million illegal immigrants in the United States are settling in states such as Georgia and North Carolina, where relatively few lived 20 years ago. The findings could have financial implications for already stressed state and local governments.

Highlights of the report, conducted by the nonpartisan Pew Hispanic Center, include:

• California leads the nation with 2.7 million illegal immigrants, but its share of the national total has dropped from 42% in 1990 to 22% in 2008. Instead, larger numbers of illegal immigrants are moving to states in the Southeast, Southwest, Mid-Atlantic, Midwest and Mountain regions.
• Florida, Illinois, New Jersey, New York and Texas have retained their appeal to illegal immigrants.
• The children of illegal immigrants comprise 6.8% of K-12 students in the U.S., up from 5.4% in 2003.
• Six in 10 illegal immigrants lack health insurance, more than double the uninsured share among legal immigrants and four times the uninsured share among U.S.-born adults.
• An estimated 8.3 million of the nation’s 154 million people in the labor force are illegal immigrants, according to 2008 estimates. That is a share of about 5.4%, up from 4.3% in 2003.

The Pew Hispanic Center periodically examines trends in the unauthorized immigrant population. State and local officials watch such trends carefully because state and local governments pay for the services provided to illegal immigrants, especially education, health care and public safety.

• Print
• Trackbacks
• Share Link