Home  :  News  :  Press
Press
Client Alerts
Press


Seeds of change
 Austin Business Journal July 10, 2009
New administration brings new concerns among immigration experts
 - by Christopher Calnan ABJ Staff
Enforcement of the nation’s immigration laws were once punctuated with news reports showing dozens of illegal workers being rounded up by law enforcement before being sent back to where they came from.

Such scenes will probably be less common during the coming years.

Although the laws are mostly the same, policies dictating how they are enforced are not. And those changes could have major implications for business owners.

In April, the Barack Obama administration and U.S. Department of Homeland Security officials said immigration law enforcement will refocus its efforts on employers that hire illegal immigrants. Effectively, that means the onus has shifted to business owners, who are now held responsible for maintaining the proper documentation for their workers, law experts say.

Businesses are increasingly facing civil fines and criminal sanctions for immigration noncompliance, said Robert Loughran, an Austin-based partner for immigration law firm Foster Quan LLP.

“We see this evolving as the government gets more confident and is obligated to prosecute,” said Loughran, who is a member of the State Bar of Texas Committee on Laws Relating to Immigration and Nationality. “We believe this will evolve into the realm of white-collar business.”

There are an estimated 2 million undocumented workers in Texas, the largest number in the United States, he said.

The U.S. Immigration and Customs Enforcement, or ICE, stepped up work site enforcement resulting from investigations of compliance failures involving Form I-9 Employment Eligibility Verification. The ICE is replacing the old model in which local field offices wielded broad discretion and often focused on “low-hanging fruit” rather than egregiously abusive employers.

Enforcement has increased exponentially in terms of the number of employers pursued and the severity of punishment across every industry and region of the country, and this trend is continuing under the Obama administration.

The Washington, D.C.-based Immigration Policy Center has indicated that of the 6,000 workplace immigration arrests made in 2008, only 135 were of employers. The center’s director, Mary Giovagnoli, said it’s too early to tell how the changes will affect businesses and their owners.

“This is a shift in attitude and approach that I think can right the imbalance a bit,” she said. “Our system of enforcing the law has gotten so out of whack.”
More flexibility sought

In Austin, Ivan Giraldo, co-owner of Clean Scapes, an Austin-based landscaping company, said the ICE limits the number of workers who annually enter the United States with H2B visas for temporary work. For the past three years, Giraldo has been pleased with the H2B visa program and its process, although this year the quota for H2B visas had been filled by the time Clean Scapes’ application was reviewed.

Now, however, the policy has changed to count returning workers toward the quota, making things more difficult for employers such as Clean Scapes, which typically hires 50 of its nearly 200 peak season workers with H2B visas from Mexico. That change forces employers like Clean Scapes to hire new workers who need to be trained each year, Giraldo said.

“Managers have to work harder to make up some of that consistency,” he said. “I think [ICE] needs to be more flexible about this program in particular.”
Problems with E-Verify

Meanwhile, the Internet-based E-Verify system, developed in part by the Social Security Administration, has caused problems because the Social Security card is the most altered form of identification in the United States, Loughran said.

E-Verify enables employers to compare Form I-9 information with more than 425 million records in the Social Security Administration’s database and more than 60 million records in Department of Homeland Security immigration databases.

But Loughran said companies that rely on E-Verify as their primary auditing tool are providing potentially flawed and “mineable” data to the government before conducting their own internal reviews.

Since April, employers have been required to use a new I-9 form that includes several changes, such as the acceptance of only unexpired documents as proof of identity. Several new documents have been added to the list that establishes identity and employment authorization, including passport cards, Loughran said.
Demand for visas vary by type

The demand for two of the three popular types of work visas has decreased this year. A contraction in the technology industry has lessened the demand for H1B visas, which are popular with foreign engineers and software developers, said Mehron Peter Azarmehr, an Austin-based lawyer.

Also, demand for H2B visas for nonprofessional workers has dropped with the sharp decline in the housing construction industry, he said.

But a shortage of registered nurses has fueled a strong demand for H1C visas. And proponents advocate loosening restrictions to alleviate the shortage that encourages the overuse of nurses, Azarmehr said.

Such a measure could have far-reaching implications, he said.

“By eliminating that shortage, you cut out the cost of temporary contract nurses and eliminate the overtime costs,” he said. “And the hospitals would reduce burnout and turnover. Perhaps it would improve the quality of our health care.”
©2009 Azarmehr & Associates, P.C.   |  Home  |  Attorneys  |  Services  |  Clients  |  Resources  |  News  |  Contact Us