Preeta Bansal is the second lawyer I'm recognizing from the just released National Law Journal list of the 50 Most Influential Minority Lawyers in America. The Indian-born Bansal heads the appellate litigation department at Skadden Arps, one of the world's best known law firms.
She's had an amazing career for such a young lawyer beginning with graduating Harvard Law School and clerking for US Supreme Court Justice John Paul Stevens. She served as a White House lawyer in the Clinton Administration, as the Chair of the US Commission on International Religious Freedom and Solicitor General of New York.
The Wall Street Journal analyzes why Senator Bob Menendez (D-NJ), a long time pro-immigration advocate, blocked AgJobs and H-2B reforms that were backed by the pro-immigration community. They conclude, and I concur, that the substance of the proposals was not the problem despite the insistence of the Senator. The problem is one that has plagued immigration reform efforts for years - the unwillingness of many in the pro-immigration community to accept compromise and incremental improvements.
A federal district court judge has ruled against the Dallas suburb of Farmer's Branch in a case challenging the municipalities ordinance barring the rental of apartments and homes to illegally present immigrants. The court's decision ruled that state and local regulation of immigration law is unconstitutional and while the decision only pertains to this town's law, the decision certainly raises the question of whether the whole range of laws popping up around the country affecting employers, landlords and others.
The anti-immigrant Programmers Guild filed a suit to overturn the recently released regulation allowing F-1 students in science, technology, engineering and math (STEM) fields to seek extensions of their employment authorization for 17 months claiming the Bush Administration lacked authorization to issue the rule. If the folks pushing frivolous bills like this focused as much attention on trying to promote STEM education to America's youth, perhaps we would not be getting creamed by so many other countries. Holding a gun to employers' heads and trying to prevent them from hiring the workers they feel are best suited to keep them competitive will only accelerate the outsourcing of jobs. Those who say otherwise are in denial.
I'm analyzing the legal issues in the press release below and will have more to say shortly, though a quick read leaves me scratching my head trying to figure out exactly what Fragomen is alleged to have done that would violate DOL regulations:
U.S. Department of Labor auditing all permanent labor certification applications filed by major immigration law firm
Department acts to protect employment opportunities for American workers
WASHINGTON — The U.S. Department of Labor today announced that it has begun auditing all permanent labor certification applications filed by attorneys at Fragomen, Del Rey, Bernsen & Loewy LLP. The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.
“The department’s decision to further investigate these applications will help ensure the integrity of the permanent labor certification process and ultimately protect job opportunities for American workers,” said Gregory F. Jacob, solicitor of labor. “The department takes seriously its responsibility to ensure that American workers have access to jobs they are qualified and willing to do and that their wages and working conditions are not adversely affected by the hiring of foreign workers.”
The permanent labor certification process, established by the Immigration and Nationality Act, allows employers to sponsor aliens for permanent residence (secure a “green card”) to fill positions for which no qualified, willing and available U.S. workers can be found. The department’s regulations set forth detailed procedures by which an employer seeking certification must demonstrate that no qualified U.S. workers can be located.
The department’s regulations specifically prohibit an employer’s immigration attorney or agent from participating in considering the qualifications of U.S. workers who apply for positions for which certification is sought, unless the attorney is normally involved in the employer’s routine hiring process. Where an employer does not normally involve immigration attorneys in its hiring process, there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program.
In 2004, the department adopted reforms streamlining the permanent labor certification process by moving to an attestation-based system. Audits of applications are one of the major deterrents used by the department to ensure program integrity.
Today's Immigrant of the Day is the latest lawyer I wanted to highlight who is named in the National Law Journal's list of the 50 most powerful minority lawyers in America. Taiwan-born Howard Chao is the partner in charge of West Coast mega-firm O'Melveny and Myers Asia practice. Chao has built the practice in to one of the nation's premiere international law groups, a fact that is confirmed by his being profiled in Time Magazine. According to the NLJ,
Chao is partner in charge of O'Melveny & Myers' Asia practice, which includes 120 legal professionals. In 26 years with the firm, Chao built the group's China team from its inception in the mid-1990s with offices in Hong Kong and Shanghai, adding an office in Beijing in 2003. Chao, also a member of the firm's mergers and acquisitions group, is a highly regarded figure in financial markets, deal-making and legal issues. In 2006, O'Melveny's group was named China practice of the year by Asian Legal Business magazine. In 2007, O'Melveny closed 16 Chinese public offerings -- raising nearly $6.5 billion on exchanges in the United States, Hong Kong and London -- and closed 70 private equity and venture capital deals in China.
Here's my summary of the employer sanctions provisions in the new law. There are some other immigration provisions I have not summarized including a bar on unauthorized immigrants attending state colleges. Also, here's a link to the Word version of S. 392. Download south_carolina.docxSOUTH CAROLINA On May 29, 2008, the South Carolina Legislature passed the South Carolina Illegal Immigration Reform Act.
What obligation does the new law impose on government employers?
Beginning January 1, 2009, all public employers are required to register and participate in E-Verify.
What obligations does the new law impose on employers engaged in contracts with state agencies?
Contractors and their sub-contractors seeking to do business with state agencies must register for E-Verify or only employ workers with a valid South Carolina Driver’s license or an out-of-state driver’s license if the license requirements are as strict as South Carolina’s. The provision does not apply to contracts worth less than $15,000 for political subdivisions and $25,000 for other public employers (and employers may not divide work in order to avoid the applicability of the section. It also does not apply to contracts for the acquisition of an end product and contracts predominantly for professional or consultant services. Contractors must provide a written statement verifying compliance, though the public employer need not audit or independently verify compliance by the contractor.
Are there requirements applicable to all private employers?
All employers with more than 100 employees (and their contractors and subcontractors) must, by July 1, 2009, either use E-Verify or timely and properly complete Form I-9 documents on each employee (which is already required under current federal law). Employers may also be in compliance with the new law if they employ only workers possessing a valid South Carolina Drivers License or a license from a state with requirements at least as strict as South Carolina. This provision of the new law will apply to employers with less than 100 employees beginning July 1, 2010.
There is now a general requirement stating that a private employer shall not knowingly or intentionally employ a person who is not lawfully present in the US.
When does the new law take effect?
Under the provisions of the law relating to contractors with public employers, subcontractors with five hundred or more employees must comply by January 1, 2009. For those with 100 to 500 employees, they new law takes effect July 2009. For everyone else, the law takes effect on and after January 1, 2010.
Is there a safe harbor for employers in the new law?
Yes. Employers complying with the E-Verify or driver’s license requirement may not be sanctioned under the contractor section of the new law. Private employers subject to the general section applicable to all private employers with 100 or more employees are also provided a safe harbor if they are in compliance with I-9 rules.
Are there penalties for those filing false complaints?
Those making false reports shall be guilty of a felony and imprisoned for up to five years.
What is the new requirement for reporting violations?
The State’s Commissioner for Minority Affairs is required to set up a 24 hour hotline to receive allegations of federal work authorization program violations and the department shall, in turn, relay the information to the appropriate law enforcement agency.
What does the new law change with respect to deducting wages paid to unauthorized employees?
The new law bars after January 1, 2009, the deduction of wages paid to persons not authorized to be working in the US except where after a reasonable investigation, the employer did not know or should not have known the worker was unauthorized. The provision only applies to individuals hired after January 1, 2009 and does not apply to any individuals with a valid South Carolina driver’s license or license issued by a state with license requirements as strict as South Carolina’s.
What is the new transporting bar contained in the new law?
It is now a state law felony to transport, shelter, harbor or conceal unauthorized individuals knowingly or in reckless disregard of the fact that the person is illegally present in the US. Fines range from $3000 to $5000 and guilty parties may be subject to imprisonment for up to five years. Also, persons convicted under the law are barred from receiving a professional license in South Carolina.
What does the new law change with regard to identity theft?
Individuals who engage in identity theft for the purpose of working in the US must pay restitution to the state for any benefits received as a result of benefiting under any state programs and individuals suffering any harm as a result of such identity theft may now bring a private cause of action and claim triple damages and attorney fees.
Does the law give any rights to discharged US workers?
Yes. Employees who are replaced by unauthorized workers when the employer knows the replacement worker is unauthorized shall have a civil right of action for wrongful termination. The replacement must have occurred within 60 days of the termination, the replacement worker must not have been authorized at the time of the replacement, the employer must have known the replacement worker’s status and the replacement worker must perform the same duties and have the same responsibilities as the terminated employee. Employees successful in such a suit can seek reinstatement in the position, actual damages and attorney fees. The claim must be made within a year of the date of the alleged violation.
I'm taking a break from the lawyers series to note the accomplishment this evening of Czech-born Petr Sykora, the right wing for the NHL's Pittsburgh Penguins. The Penquins were down to the wire in the Stanley Cup finals - down 3 games to 1 against the Detroit Red Wings. After reaching a third overtime in tonight's fifth game of the best of seven Stanley Cup championship series, the Penguins' Sykora scored the winning goal keeping his team's hopes alive.
Mark Krikorian, the head of the anti-immigrant Center for Immigration Studies, has been posting some amusing stuff lately on the web site of the ultra-conservative National Review. Apparently, the new $5 bill has him spooked. Probably not as much as anyone with a foreign accent, I suspect. The liberal Huffington Post has some fun at his expense.
Senator Ted Kennedy, the chair of the Immigration Subcommittee and the head of America's royal family of politics, had major brain surgery today aimed at removing as much of a malignant brain tumor as much as possible. Kennedy is hoping to be back at work soon.
In the mean time, Senator Robert Byrd, the 90 year old senior Senator from West Virginia, is in the hospital after his caregiver noticed he was suffering from a high fever. The Democrat is one of the Senate's toughest critics of immigration, both legal and illegal.
Barack and Hillary are not the only ones facing a fight in South Dakota. Father Cathal Gallagher, a priest who has presided over a congregation in the town of De Smet, South Dakota, faces deportation due to a very minor status gap several years ago that resulted from slow processing at USCIS. De Smet, by the way, is the place where famous American author Laura Ingalls Wilder set the biographical book Little Town on the Prairie, the second in the famous Little House on the Prairie series.
Continuing our series honoring immigrants on the National Law Journal list of the 50 most influential minority lawyers in the country, today's Immigrant of the Day is Colombian-born Sergio Galvis. Mr. Galvis, a Harvard Law School graduate, is one of the nation's top international financial lawyers and practices with well-known firm Sullivan and Cromwell. His firm biography contains a long list of massive transactions any one of which would be a major accomplishment for the typical transactional lawyer. Here's how the NLJ described what led them to include Mr. Galvis:
Billion-dollar deals might seem a bit old hat for Galvis — he's helped out on rather a few while also staking out a niche specialty in sovereign finance and debt restructuring. He published a well-regarded analysis of the topic while still in law school; more recently he was among the specialists who helped refine sovereign workouts for the Group of 10 finance ministers. He applied the theory in helping to arrange Argentina's $100 billion debt restructuring, the largest such debt exchange to date. He participated in U.S. Treasury Secretary Henry M. Paulson Jr.'s 2007 conference on U.S. capital markets competitiveness. A native of Colombia, Galvis is active in education initiatives in the United States and Latin America. He heads his firm's Latin American group and coordinates its practice in Spain (where in 2006 he represented Endesa S.A. during a high-stakes international bidding war for the utility company).
The newspaper of record has another excellent editorial on the costs to the country of the war on illegal immigration. Here's the compelling opening of the piece:
Someday, the country will recognize the true cost of its war on illegal immigration. We don’t mean dollars, though those are being squandered by the billions. The true cost is to the national identity: the sense of who we are and what we value. It will hit us once the enforcement fever breaks, when we look at what has been done and no longer recognize the country that did it.
A nation of immigrants is holding another nation of immigrants in bondage, exploiting its labor while ignoring its suffering, condemning its lawlessness while sealing off a path to living lawfully. The evidence is all around that something pragmatic and welcoming at the American core has been eclipsed, or is slipping away.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com