I was privileged to serve as Chair for the 26th Annual American Immigration Lawyers Association, Central Florida Chapter, Fall Conference last week at the Sheraton Sand Key Resort in Clearwater Beach, Florida. To provide a resource for the attendees and to those who were not able to attend, we will recap the conference with several guests posts by law students. The first in the series is from Bruno Portigliatti, a law student at Florida Coastal School of Law and Juris Doctor Candidate, 2013:
On October 5, 2012, at the 26th Annual AILA Central Florida Fall Conference, Attorneys Tulio Suarez and Jennifer Deines spoke on “Balancing Immigration Employment Compliance Against Citizenship/National Origin Discrimination.”
Mr. Suarez began by noting that the current Administration and Congress have paid particular attention to immigration enforcement as a key national interest issue, and that as a result, this new enforcement environment has had far-reaching effects on employers and their hiring practices.
This increased tension in the enforcement of the IRCA has led to employers being fined for their unlawful hirings in an effort to bring them to compliance and make a public example of employers who are non-compliant. The Immigration Reform and Control Act of 1986 is enforced now by U.S Immigration and Customs Enforcement (ICE).Mr. Suarez explained that in setting the proposed fine, these federal agencies consider these five statutory factors:
- Employer size
- Employer good faith
- Seriousness of the violation, taking into account whether the forms simply contained errors; whether important sections or attestations were incomplete; and, whether the requisite form and documents were retained at all
- History of previous violations
- Actual involvement of unauthorized aliens
In addition to civil fines, Mr. Suarez spoke about some of the criminal implications of immigration employment compliance. He indicated that ICE enforcement strategies include criminal investigations, particularly focused on employers involved in human trafficking, smuggling, and harboring of illegal aliens. These criminal behaviors have resulted in a significant increase in the number of criminal arrests in recent years. Statistics show that from 2004-2008 alone, there has been a dramatic increase from 176 arrests to 1,363.
In an effort for employers to protect themselves from civil or criminal issues, Mr. Suarez suggests that they establish an I-9 compliance plan that provides accurate, reliable and easy to implement guidance about documenting, supplementing and updating employee eligibility in a nondiscriminatory manner.
Guest Speaker, Attorney Jennifer Deines
As a trial attorney with the Office of Special Counsel for Immigration Related Unfair Employment Practices, Ms. Deines offered a practical overview of the prohibited conducts under the INA’s Anti-Discrimination Provision, and the possible outcomes and remedies of a charge. Pursuant to 8 U.S.C 1324b, these prohibited conducts are:
- Citizenship/Immigration status discrimination
- National origin discrimination
- Document abuse
- Retaliation or Intimidation
The enforcement of these prohibited conducts is based on either a charge-based investigation or a self-initiated one. A charge-based investigation is one in which the OSC investigates charges of discrimination filed by injured parties or their representative. A self-initiated investigation is one in which the OSC has authority to open an investigation based on reasonable belief that an employer has committed a violation. The following are the possible outcomes of a charge:
- Dismissal if OSC finds no reasonable cause to believe the employer engaged in discrimination/no jurisdiction
- If OSC determined there was discrimination, settlement attempts are made before a complaint is filed in court
- If settlement fails, a complaint is filed and the matter is litigated before an Administrative Law Judge
- Charging Party may file own complaint
The remedies discussed by Ms. Deines were to hire or rehire, back pay, injunctive relief, and civil penalties.
E-Verify, a web-based service of the Department of Homeland Security and Social Security Administration, allows employers to electronically verify the employment authorization of new hires and avoid non-compliance. This system, along with the proposed I-9 Compliance Plan by Mr. Suarez, and the multiple resources available from the OSC to employers and potential employees are necessary considerations for employers in ensuring compliance and non-discriminatory hiring practices in immigration employment. For further information contact Mr. Suarez or the OSC office.