Bloggings On Immigration Law And Policy
by Greg Siskind
October 02, 2010
October 01, 2010
I'm riding tomorrow in the BCB100, Memphis' annual century bike ride benefiting LeBonheur Children's Hospital. For those of you who don't know that much about road biking, a century is a 100 mile bike ride and it is to cycling what the marathon is to running. This is my first century and I'll likely be on the bike for a good 6 to 7 hours. There are some hills that will be tough, but after a summer of training in triple digit Memphis temperatures, the forecast is for a high in the 70s and sunny skies. I'll let everyone know how I did tomorrow night.
TMZ has posted the Whitman nanny's job application and the employee's I-9. It's not clear whether Whitman or the agency handled the I-9 and that's because the form itself is not signed and dated by the employer or its agent as required by law. The form also doesn't have a social security number under the List C documentation, another violation. Because the form is not signed or dated by the employer, it is far from clear that the employer even examined the documents presented. Keep in mind that Abercrombie & Fitch got a $1 million fine this week for violations of just this sort.
Incidentally, even if Whitman's nanny agency handled the I-9, that doesn't let her off the hook for violations in completing the form. The nanny agency was not the employer - just the agent and so Whitman and her husband are still liable for employer violations. There appear to be paperwork violations. There could also be liability for "knowingly" employing someone illegally if the facts show that despite the presentation of a bogus social security card, the employer had independent knowledge or "constructive" knowledge that a worker was out of status. Certainly the fact that the I-9 was never signed by the employer means that the defense of saying that you looked at the documents presented and they appeared valid is not going to be readily available.
The shortage of 39,000 doctors expected by 2014 is now estimated to be 63,000 as a result of 30,000,000 more people having access to health care. Isn't it time to pass physician immigration reform legislation so that more foreign doctors trained in the US get the opportunity to stay?
An interesting development. While some conservative groups came to Meg Whitman's defense and accused Democrats of just playing dirty tricks, the very anti-immigrant Americans for Legal Immigration PAC (ALIPAC) was quick to condemn the gubernatorial candidate:
Strictly from the standpoint of the law, I'm guessing Whitman is probably off the hook. That's because the staffing agency that sent the nanny to her household handled the I-9 and the SSA no-match letter is not, in and of itself, normally adequate evidence that an employer knows an employee is illegally present. In fact, that was one of the reasons why the Bush Administration tried to push through a regulation that would make receiving a no-match letter have such an effect. That regulation was never implemented.
Of course, some might argue that Whitman should have known the situation after nine years of employment. Plus, the nanny was never able to travel with them during frequent overseas trips, something that should have been a fairly obvious clue.
While I was out of town yesterday, the Menendez-Leahy immigration reform bill dropped in the Senate. The bill is not going to go anywhere this session or in the lame duck session after the election. Perhaps it is meant to re-emphasize to base voters that the Democrats are the pro-immigration party. In any case, the bill has some similarities to the Gutierrez bill, though it definitely is more enforcement-oriented. While I usually summarize major immigration proposals, I simply don't take this seriously enough to want to bother. For one, it's not co-sponsored by Senator Schumer, the chair of the Senate Immigration Subcommittee, which means that this is not the bill that will have the Democrats' official blessing. And second, given the timing of the introduction, the bill has no serious chance of being marked up, debated or eventually the subject of a vote.
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
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.