As published in the Employers Group: Newsletter: Feb/Mar 2001
Capitol Review: Immigration Legislation and What You Should Know
By Josie Gonzalez
What are the benefits of the section 245i amendments of The Legal Immigration and Family Equity Act (“LIFE”), which were passed by Congress recently and became effective on December 21, 2000?
The legislation gives minor relief to thousands of persons who have been living illegally in the U.S. Earlier legislation, which was enacted September 30, 1996, punished those who had lived illegally for more than one year in the United States by mandating a 10-year banishment period from the U.S. before qualifying for a “green card” A few exceptions were made for some family relative classifications, and an exception was made for anyone who filed an application through employer or family sponsorship before January 14, 1998. LIFE merely changes the “grandfather” date to April 30, 2001, and allows for a payment of a $1,000 fine, instead of a 10-year bar.
Does the new legislation create an amnesty or some new avenue to legalize one's status?
No, there is no new amnesty. The traditional ways to immigrate still exist - principally through family or employer-based sponsorship.
Does the new legislation provide for a work permit or protection from deportation while one has an application pending?
No. However, in the case of an employer-sponsored petition (“labor Certification”), if one is classified as a “skilled or professional” worker, and the labor certification is filed through the “Reduction-in-Recruitment” avenue where advertising and compliance with other requirements for the job occur before filing the application, it is feasible that a work permit and protection from deportation could be obtained in nine to twelve months, assuming both the Department of Labor, which handles the first stage of the application, and the INS, which handles stages two and three, continue with the current processing time periods.
What is the likelihood of succeeding in getting a labor certification, employer-sponsored application approved?
The key components of a successful application include:
(1) A skilled, hard-to-fill job (examples include specialty cooks and chefs, production supervisors or leads, skilled machinists, sample makers, and a host of other jobs which require years to perfect the skill and for which job openings are hard to fill.)
(2) A salary that is considered the “prevailing wage” for the position, according to Department of Labor wage surveys (OES, Davis Bacon, Service Contract Act surveys) or a private wage survey that covers the occupation in the geographic area and provides a weighted average.
(3) Skillful preparation of the application, particularly where the worker gained all qualifying experience with the sponsoring employer.
What are the hazards or pitfalls to the employer in agreeing to sponsor an applicant?
*Expense - These applications are quite expensive when prepared by experienced attorneys. The alien worker often locates the least expensive, smoothest-talking person who sometimes is not a trained lawyer, and who also does not represent the best interests of the employer.
*Exposure to INS - The Immigration, Reform and Control Act of 1996 prohibits the knowing hire and knowing continuing employment of unauthorized workers. The employer must complete in good faith an I-9 form and must attest that the employment documents examined reasonably appear genuine. If, after hire, the employer learns that the documents supporting the I-9 are not bona fide, the obligation is to terminate the services of the employee. Filing an application to help legalize a worker may trigger an I-9 audit which covers not just the I-9 related to that employee, but those of the entire workforce. Filing labor certification applications for many workers may lead to a criminal charge of engaging in a pattern and practice of knowingly continuing the employment of unauthorized aliens.
What is the likelihood of INS conducting an I-9 audit based on the filing of a labor certification application?
Today, INS worksite enforcement is at a historic low, due in large measure to the robust economy and low unemployment. However, tomorrow it may change. In the past, INS conducted a number of labor certification-driven I-9 audits, and the results were tragic. The I-9 audit resulted in the forced termination of many workers, and some fines were assessed against the employer. Yet, countless other employers filed labor certifications, were never visited by INS, and their employees have now attained work permits or have gained permanent residency. In some regions of the United States, such as New York and Seattle, I-9 audits are infrequently conducted. INS admits that its resources are limited and that its enforcement priorities are deporting criminal aliens, border enforcement, and the prosecution of the employer engaged in egregious conduct, such as assisting
in transporting aliens for employment, and violation of wage and hour laws.
Should an employer take a gamble and risk exposure to INS by sponsoring an employee?
Only an employer can make that decision. It is one that should be made with knowledge of the new law, fully cognizant of all risks and rewards.
Are there any other provisions contained in the new 245i legislation?
Yes, a few others, but this Q&A focuses on the employer-specific provisions. For example, there is a provision to benefit people who have lived here since before January 1, 1982 and who filed a late amnesty application under the 1986 amnesty program. Additionally, applicants who are married to permanent resident, “green card” holders, have to wait five or six years to legalize their status. Now, if one has already waited three years, a work permit can be obtained under a new “V” visa.