What You Need to Know About Immigration Law

Leon Fresco, a partner at hollanden Night. He was formerly the Deputy Assistant Attorney General for the Office of Immigration Litigation at the Justice Department. So Leon, let's start with the coveted Green Card, which is actually pink, but was one screen. It allows a lawful permanent resident to live and work in the US. How does an immigrant get

a green card? Basically, there are three main ways. One is through a family member, which is a spouse of parent, or a child who is a U S. It is in competition for their parents, their spouse or their child, or they can petition for their sibling, but that takes a lot longer. That's a lot twenty year process. That's one way, and then the second way is that an employer can petition for a person who is a foreign national, and that employment petition can get someone a Green card.

And then the final way is the Diversity lottery that the President talks about disparaging ly, But that's a lottery of fifty green cards that's given a year where people can apply and if they win the lottery, they can get the green card. So most people are familiar with nannygate stories. Since the law requires an employer to confirm the work authorization of each new higher, what does an employer have to do in practice with a new hire.

So at the moment, all that is the minimum requirement is that the employer has to get two documents or one if it's a passport, and the two documents have to prove the the person is who they say they are and that the person has legal work authorized status in the United States. So the bare minimum that people usually give, and that's the most prevalent for fraud, is they give a fake driver's license and a fake social Security card, both that have the same name and that

have a Social Security number on it. And as long as those documents do not look blatantly fake, the employer must by law except those documents as proof of ability to work in the United States. What happens if they do look fake, if the employer thinks they completely look fake. So, as an example, you know, a three hundred pound man gives a driver's license that says Mary Sullivan on it or something. Then in that situation, the employer can choose

to reject it. But if it turns out that you really did reject Mary Sullivan's application, then you can be sued for discrimination, and actually that can cost you hundreds of thousands of dollars and damages, and so the employers really caught between the rock and a hard place. Under the current system, what happens if the government finds out that you've employed an illegal immigrant, So there's different gradations

of what happened. If it's the first time and it's one person, the government usually just comes by and says, get rid of this person, and that's the end of it. If it's hundreds of people, then there's two kinds of violations. There's what's called paperwork violations, which is that you didn't actually do this test of the driver's license and the social Security card, and you didn't keep records of having done this, and that can be a couple of thousand

dollars per violation. They can charge less, but they can charge up to a couple of thousand dollars per violation. And then if there's what's called a pattern or practice of knowingly hiring undocumented aliens for work, then in that situation they can actually start putting people in the company in jail or they can criminally charge the company, which is again more fines would have to be paid. Ice arrested just seventy two managers last year compared to more

than workers in these work site raids. And a case in point is the recent raid in Mississippi where unsealed documents alleged that some supervisors and managers knew or turned a blind eye to the undocumented workers. Why are there so few prosecutions of managers and employers, It's because the legal standard is incredibly difficult. In order to charge employers and for criminal penalties, you have to show a pattern

and practice. So that's more than one time that this happened of knowingly not just accepting these documents and sort of not knowing one way or the other, but of knowingly employing an unauthorized alien who is knowingly unable to work in the United States. So usually, in order to not waste government resources, prosecutors will only charge employers in cases where the employer has helped to procure fake documents or has otherwise produced the fake documents for the employee

to use. Have you ever represented an employer or a manager who was charged, not criminally charged, but I've represented people who have received notices from ICE that there's something problematic in their paperwork. That's in fact a large component of my practice. Suppose you hire someone as an independent contractor. If you hire someone as an independent contractor, of the time you'll be able to avoid liability for an undocumented worker.

But you cannot do it if you know the reason you know you're hiring the independent contractor is to evade the immigration law. That is still a violation, and then all of these fines and penalties that we've talked about to kick in, and you can be criminally charged if there is a pattern and practice of knowing violations. And nowadays, is it harder to get a green card than it used to be or are the law still basically the

same at this point? Well so, because there hasn't been dramatic immigration reform since n the statutes have not changed. What's happened is that each administration, as it comes in it goes out, tends to weaken or strengthen their interpretations of those statutes. And at the moment, we're at a historic tightening of the evidentiary burdens that one puts forward in order to obtain a green card. So everything is

being scrutinized at a much higher levels. On the employment category, for instance, much more evidence of being required than ever before, that a specific degree is needed to perform a specific job that cannot be performed by any Americans before you get the green card. It used to be, for instance, if you said, well, okay, you genuinely need an m b A to be an investment banker, that would be enough because that's a typical route at n b A.

And then you become an investment banker. Now it would say, well, why I does this investment banking position need this MBA? I heard a rumor that somebody is doing investment banking without an MBA, So doesn't that just prove that you need one? And then can't you fill this with people

who don't have any degree? And so that's the kind of scrutiny the government is putting on each case now, making it much much more difficult having to prove that every member of a profession has a certain degree in order to make that degree a requirement to do the work. Thank you so much for teaching us in immigration one oh one, Lee, And I know you teach this in law school, so thanks so much. That's Leon Fresco. He's a partner at Hollanden Night. Thanks for listening to the

Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg