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Ask a lawyer: Immigration

PD Editor Karen Lee Published on 11 January 2011

Wisconsin Dairy Business Association members had an open floor to ask questions concerning immigration at the organization’s Annual Business Conference last month.

The questions were fielded by three attorneys: Leon R. Sequeira, labor and employment attorney, Seyfarth Shaw LLP, Washington, D.C.; José A. Olivieri, partner, Michael Best & Friedrich LLP, Milwaukee, Wisconsin; and Erich C. Straub, Immigration Attorney LLC, Milwaukee, Wisconsin.

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Q. What’s happening with the Labor Certification Program that would allow you to bring people to the U.S. in 12 or 14 months and grant them permanent residency?

OLIVIERI: It basically isn’t available at this point. Just in terms of the availability of permanent resident visas, these Green Cards, the number is so limited in terms of demand that it really is an impossible task.

Q. When an employee’s ID expires, are they issued a new ID number or is the ID number the same?

OLIVIERI: I’ll give you a couple of examples of documents. The Employment Authorization Document (EAD) does expire. That is a document where the employee needs to get reauthorized and issued a new document. If it does expire, then you, as the employer, need to re-verify the I-9.

The Green Card, or permanent resident card, has an expiration date, but shouldn’t really trigger any activity on the part of the employer to re-verify because that person is a permanent resident. The idea is: Even as the card expires, the status doesn’t change.

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There are other instances of documents expiring. For instance, if someone uses a driver’s license, and we all know a driver’s license expires, as one of the documents to get an I-9 completed, that doesn’t trigger a re-verification.

Q. What if you have an I-9 filled out, but the employee dated it after the first date of employment. Would you have the employee fill out a new one?

OLIVIERI: I would not if it was a mistake. In other words, let’s say that in fact they filled it out on the first day but they dated it incorrectly – I wouldn’t be opposed to putting a line through it and making the change to note what the correct day was, because it was the truth that was in fact when it was done. But if it turns out that somebody’s done it later than they should have, I would not go back and retroactively change the I-9.

Q. What is the timeline for an application to get a worker?

SEQUEIRA: Under the current rules, you can apply to the Department of Labor (DOL) no more than 120 days before your date of need. You can apply as soon as 75 days before your date of need.

There are certain steps along the way. You have to complete your advertising and recruitment for U.S. workers before the DOL processes the application. They’re required to issue you a decision 30 days before the date of need, so you then have 30 days presumably to locate your worker abroad and make travel arrangements to bring them here.

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That process can get thrown off for a number of reasons, including the department finding flaws in your application, requiring you to provide supplemental information and re-file.

OLIVIERI: One of the things I think is really important to understand is the reference was to finding the employee outside of the U.S. The fact is that over the last couple of decades what we’ve done is made it almost impossible for someone to go from an illegal status to a legal status.

So if you’ve got a worker that you really like how they work for you (they’ve worked for you for a few years now), it turns out you find out they’re now undocumented and you want to correct their situation.

It’s virtually impossible, not completely impossible, but virtually impossible to work out a situation where that person’s going to become legal.

Q. Does Obama have a public position on H-2A/immigration?

STRAUB: Obama is in favor of essentially AgJOBS, which is H-2A reform that would extend the program to you [dairymen] and would also allow you to legalize your current workforce.

Q. When the dust has settled after the new Congress is installed, do they have the courage or guts to make any changes, even small ones, to the H-2A for dairy?

STRAUB: I’ve got to say that however you come down on what happened in the last election, it was not good for immigration from the standpoint that it really muddied the waters. And, at least my perception is that there are a lot of politicians positioning themselves for what’s going to happen in two years.

The whole tea party movement, whether you believe that’s a positive or negative or in the middle thing, has really, really made all politicians stand back and go, “What is this and where is it going?”

Like it or not, there are many people that are part of that movement that are extremely anti-immigrant and extremely anti-immigration reform … I say unless you stand up and unless you force them to have the courage, right now I don’t see it happening.

SEQUEIRA: I would echo that point. I worked for a number of years for Sen. Mitch McConnell from Kentucky. He’s always been pro-immigration. He would honestly tell you the calls and letters to the office will run 10-to-1 or 100-to-1 against any kind of immigration reform.

It’s really incumbent upon you, whether you’re Democrat, Republican, part of the Tea Party or Socialists Farm Labor Party, whatever, to contact your representatives and let them know the importance of immigration.

Let them know that you vote, because the people opposed to these immigration reform issues are loud, and they’re very effective in their communication strategy.

There needs to be an equal effort on the other side to be able to really demonstrate how important this is – if nothing else from an economic base, let alone from a humanitarian perspective.

STRAUB: You’re probably not going to match those folks letter for letter, phone call for phone call … but I will also tell you dairy farmers are influential.

Their staffers say they recognize a lot of people who are calling and screaming and are not necessarily as influential to [the Congressmen] as you are, particularly if you are in their district and you are a business owner and you are part of their community. They do know how to weigh constituents, but I don’t think they are hearing from enough of you.

Q. What if an illegal immigrant marries someone that is legal? What is the process of becoming legal then?

STRAUB: That’s a complicated question, but let me see if I can answer it succinctly by taking the most common example. Normally, if someone is here undocumented and they marry a U.S. citizen, then they have the ability to go back to their home country and process in.

Now, not everybody fits into this category of people that can get a Green Card that way. One obstacle is if they are one of these people that have been traveling over the border frequently, there’s something out there that we immigration attorneys call the permanent bar that will make them inadmissible to the U.S., and they have to wait in Mexico for 10 years before they’re allowed to get a Green Card.

However, if they don’t fall into that circumstance, if they’ve crossed over once and they’ve been here, and they don’t have a criminal record that disqualifies them, then they are going to be eligible for what is called a waiver for the time that they were here unlawfully.

For the waiver, you have to show extreme hardship, usually to the U.S. citizen spouse. That’s a process that is very involved and an attorney’s help is usually required.

It takes at least 12 to 14 months and if it’s what we call in my office a “clean case” – there’s no criminal issue, there’s no past fraud issue in terms of the immigration system, there’s no other inadmissibility issue – there is an expedited line that allows them to process through if they have a strong enough waiver in about two months and get the Green Card.

Q. Can your workman’s compensation insurance provider request to see your I-9s?

OLIVIERI: They can always request, but you don’t have to legally provide them.

Q. What if you know one of your employees is in the country illegally?

STRAUB: That depends on the situation. The best thing to do is call your attorney, explain what it is that you know and get their advice. PD

Karen Lee
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