Already in 2004, immigration issues are creating a buzz across the nation. From President Bush's immigration amnesty proposal, to the recently implemented US-VISIT system, to increased governmental crackdown on I-9 compliance, to increased immigration due to the graying of the American workforce, businesses throughout the country are keeping a wide eye to potential changes. Here's a brief synopsis of the immigration "goings-on" in 2004:
PRESIDENT'S BUSH'S AMNESTY PROPOSAL
The President's proposal for immigration amnesty would permit illegal workers to remain in the United States or legally cross the border in order to work, to obtain a work visa for at least three years, and to potentially gain permanent residency. "Amnesty workers" would be permitted to bring their dependents to the United States if they can provide financial support. In addition to employers, some 8 to 12 million illegal immigrants are keeping an eye on the measure. Meanwhile, employers with knowledge of workers' illegal status risk penalties, fines, and imprisonment. Many employers are opting to avoid that risk by bringing foreign workers into the country under temporary work visas including the H-1B, the L, and the E visas, or under employment-based permanent resident visas (green card). The cap for this year´s HIB visas has been reached, but the BCIS is accepting filings for the 2004 fiscal year.
US-VISIT
115 airports and 14 seaports are being equipped with a high tech visa system called the U.S.-VISIT (U.S. Visitor and Immigrant Status Indicator Technology), intended to track visitors who have overstayed their welcome. The system is designed to better track such visitors since three of the September 11 hijackers overstayed their visas and up to 40% of the aliens illegally in the country are thought to have arrived in the U.S. legally and then overstayed. The US-VISIT system digitally photographs visa-carrying foreign nationals and scans their index fingers. The system seeks to match a visitor's data with data collected at overseas U.S. consulates where the visa was issued in order to verify the person's identity. If no match is found, a customs official will conduct follow-up questioning and could deny the individual admission into the United States. The data will also be checked against national terrorism and criminal databases. However, only 50 of the 211 consular outposts are currently equipped with the system, which will not be fully implemented for several more years. Citizens from many Western European and Asian countries are exempt from this process.
I-9 COMPLIANCE GAINING ATTENTION
With the recent arrests of 250 undocumented workers at Wal-Mart stores, employers nationwide are taking proactive steps to assure full I-9 compliance and to avoid potential audit. The investigation shows a growing trend among U.S. government enforcement officials to prohibit and exclude individual workers who lack proper work authorization. The law forbids an employer from knowingly hiring or continuing to employ unauthorized aliens. Substantial fines and potential criminal charges can be imposed on the knowing employer. The construction, agricultural, and meatpacking industries have been recent targets of government audits. The proper education of all personnel officials on I-9 compliance, as well as a periodic review of all completed employee I-9 forms, will help employers avoid I-9 problems.
DRIVERS' LICENSES: THE I-9 AND UNDOCUMENTED ALIENS
Federal law allows drivers' licenses to be used to establish identity for the purposes of the I-9 process. Virginia enacted new legislation that requires applicants for drivers' licenses and photo identification cards to provide documents to establish that they are legally in the United States. Allowable documentation includes birth certificates, certificates of naturalization, passports, resident alien cards, and permanent resident re-entry permits. Maryland is considering following suit, with North Carolina having implemented a similar law on February 2. California is considering a measure called the "Save Our State Initiative," which would bar undocumented immigrants from obtaining drivers' licenses and most public services, including non-emergency health care.
U.S. LABOR SHORTAGE WITH THE GRAYING OF AMERICA
The aging of the baby boomer population is causing many United States employers to look outside the country to fill pending job vacancies. According to the U.S. Census Bureau, the number of people 65 years and older is expected to increase 26% over the next ten years, with the oldest boomers reaching 64 in the year 2010. Immigrants will be increasingly sought to fill employment opportunities in nursing, home health care, mental health, and pharmacology. Currently, many hospitals, like The Johns Hopkins University Hospital in Baltimore, Maryland, are tapping into the Philippines to replenish their diminishing nursing staff. The majority of Philippine nurses are taught in English, have a strong skill set, and are willing to leave the Philippines to take advantage of American "fast track" working visas. Forecasters see a continued reliance on immigration to fill jobs in technology-driven sectors.
ILLEGAL EMPLOYEE MAKES CALIFORNIA EMPLOYER PAY FOR RETALIATION
A San Francisco federal jury this year awarded illegal Indian immigrant Macan Singh $200,000 in damages after he accused his uncle/employer of retaliation for reporting him to federal immigration officials. According to the California Legal Aid Society Employment Law Center, in 1995 Charanjit Jutla, Singh's uncle, trafficked his nephew into the United States, forced him to work 12 hour days, seven days a week, and refused to pay him. Singh filed a wage claim with the California Labor Commissioner seeking unpaid wages. The claim was settled. Soon thereafter, Jutla reported his nephew's illegal status to the INS. In turn, Singh filed a complaint in federal court alleging violation of the anti-retaliation provisions of the Fair Labor Standards Act ("FLSA"). The court found that allowing an undocumented worker to bring an anti-retaliation claim under the FLSA was consistent with the Immigration Reform Control Act and its underlying policies. The jury saw Jutla's act as one of retaliation, and awarded Singh damages. Employers need be cautious about reporting the status of illegal workers after the employee has filed a claim or a lawsuit, or even if the worker has lodged some internal complaint about working conditions.
Tracy A. Warren is an associate in Luce Forward, Hamilton & Scripps LLP´s Labor & Employment Practice Area. She can be reached at (619) 699-2547 or twarren@luce.com. Founded in 1873, Luce Forward is a full service law firm, with offices in San Diego, Carmel Valley/Del Mar, Los Angeles, and San Francisco.
