Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

An article in Law.com provides a clear and concise analysis of the possible impact of the new administration on immigration while advising diligence and compliance for the present (“How Will Obama Administration Impact Immigration?”). The article is by Elena Park who, according to the bio posted with the article, heads the immigration practice at Cozen, O’Connor, a large national law firm.

In keeping with the focus of this blog, we emphasize that if there is any area where business clients would want to stay away from litigation and follow “best practices”, it is in the employment of foreign workers. We have commented before on the narrow path that employers must walk between non-compliance and over-zealous enforcement, for example, here. Ms. Park expresses the dilemma faced by employers as follows:

Employers are feeling the pressure of government scrutiny for potentially hiring unlawful workers, while having to avoid discrimination claims for over-zealously limiting jobs to U.S. employees.

Among the advice offered in the article: Verify - complete I-9 employment verification forms for all new employees; “Document, document, document” – any employment verification issues; follow the same employment verification procedures for all employees.

Looking ahead, the article describes future reform of immigration laws under the new administration that may include legalization of currently undocumented workers, increase in H-1B numbers to allow more hiring of skilled foreign workers, continued worksite enforcement, greater border security and other changes. Recognizing that these predictions are speculative, the article points to statements by the new President (while campaigning) as evidence that immigration is not likely to remain on the back burner.

The focus of this blog is not political so I won’t comment on the pros or cons of these predictions. I am in agreement with this article, however, to the extent that it advises employers to remain diligent to comply with existing law and stay tuned for a possibly more manageable legal environment in the future.

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We commented in an earlier post on a Wall Street Journal Law Blog report that a law firm was being audited by the United States Labor Department for giving “improper” advice to its client.

Now, Law.com, in a post by Mark Hamblett reports that the audit has been quietly dropped (“Labor Department Drops Green Card Audit of Nation’s Largest Immigration Law Firm”). 

It may come as a surprise that a government agency presumes to tell any law firm what advice it can give its client. As pointed out in the prior post, the immigration laws and regulations are complex and the Labor Department believed then that its interpretation of the regulation raised an appropriate issue. In any case, that interpretation has, for now, been dropped. 

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The Philadelphia Immigration Lawyer Blog  in a recent post (U.S. Passport Card Now an Accepted List A I-9 Document"), brought to our attention  a USCIS announcement that the U.S. Passport Card is now a “List A” document that can be used to verify identity and authorization to work for I-9 purposes . Think of the Passport Card as a short-form passport for travel in North America, the Caribbean and Bermuda.

We have commented on the I-9 process in a prior post since there should be an interest in staying out of one of the most unpleasant forms of business litigation: compliance litigation with the U.S. government. We made and reiterate the short and simple suggestion that employers should take care to comply with I-9 rules and also, to avoid charges of discrimination, take care not to go beyond them. Staying up to speed on changes such as this is one small way to help ensure compliance.

Image from Wikipedia Commons.

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According to the Wikipedia entry, in Greek mythology Scylla and Charybdis were two sea monsters who were on opposite sides of the Strait of Messina between Sicily and Italy. They were located close enough to each other so that they posed an inescapable threat to passing sailors. Avoiding Charybdis meant passing too closely to Scylla and vice versa. Passing between them was one of Odysseus’ adventures in the Odyssey.

In the interest of full disclosure: my origins are from an island in the Strait of Messina. But, I am not related to either Scylla or Charybdis.

I was reminded of the story by a post in the blog of the Capitol Immigration Law Group, LLC concerning issuance of a revised Form I-9, Employment Eligibility Verification ("New I-9 Form Released"). Employers are required to complete and maintain an I-9 on file for all new employees. The CILG post provides useful information about the form and its most recent revision.

The thought came to my mind that employers need to navigate carefully between the monsters of Non-compliance and Over-zealousness.

Immigration is such a hot button topic that I’ll preface further remarks by mentioning that in this blog our perspective is legal and managerial, not political.

Right on the first page of the I-9 instructions is a box warning that it is illegal to discriminate because of national origin or citizenship. The same instruction warns against one of the most common discriminatory practices: employers cannot specify which documents they will accept.  

Employers’ focus, in the interest of compliance and avoidance of wasteful litigation or penalties, should be on learning the I-9 rules and implementing appropriate, non-discriminatory procedures but not going beyond the rules. If in doubt, consult an attorney. 

Image from Wikipedia Commons:Odysseus In Front of Scylla and Charybdis by Johann Heinrich Fussli.

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A law firm is being audited because it allegedly instructed its clients to contact the firm before hiring U.S. workers, according to a post by Dan Slater (“Do Lawyers Help Companies Find Reasons Not to Hire U.S. Workerson the Wall Street Journal Law Blog, citing a story in the Wall Street Journal by Nathan Koppel.”)

The audit was initiated, apparently, because the U.S. Department of Labor does not consider it proper for an employer to consult counsel before turning down a U.S. worker. when sponsoring a foreign national for permanent residence (“green card”). The issue is described more thoroughly in the LB post.

A quotation in the LB post from an immigration attorney caught our attention:

The audit, according to immigration lawyers, could deter companies from asking attorneys to help them decipher Labor Department rules. “Attorneys need to be involved in [the green-card] process,” said New York immigration lawyer Philip Kleiner. “It’s more complicated than tax work.”

Tax attorneys may argue Mr. Kleiner’s last point. But I think that a consensus is reachable: aspects of both Immigration Law and Tax Law can be complicated and the assistance of counsel is important to achieve compliance. 

Thus, the story raises a concern because the audit seems to discourage employers from seeking counsel when they most need it. Actually, the issue is more subtle than that because there are specific regulations governing the role of counsel in the process being audited and the audit is about whether there was compliance with these specific regulations.

For our business clients, the “lesson” from this story is simpler. Both Tax Law and Immigration Law have another aspect in common. In both, the complexities often (and we will concede, not always) arise when you seek the advantages or benefits of the laws. After all, many people file short-form 1040’s and the Tax Law is not that complicated for short-form filers. But, if you seek to benefit from a tax shelter, you should proceed cautiously and with the advice of counsel. 

Similarly, there are benefits to be gained for both employers and foreign nationals from the provisions of the Immigration Laws. But, the process can be complicated and, despite the audit described in the LB post, it is best to proceed with the advice of counsel.

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RIDGEFIELD PRESS

Dec 13, 2007
Business Update: 12/13/07

Rogers & Tartaro expanded law practice to immigration

Rogers & Tartaro, LLP, in Ridgefield has expanded its law practice to include services in immigration law for employers, families and individual clients.

Attorneys Beverley Rogers and Angelo D. Tartaro, the firm’s partners, said immigration law is a natural extension of their employment law practice and an opportunity to meet a growing and essential need.

Born in Italy and fluent in Italian, Mr. Tartaro emigrated to the United States with his parents when he was six years old. He graduated from Brooklyn College with a bachelor of arts in economics, and he holds an master of business administration from the NYU’s Stern School of Business.

He graduated magna cum laude from Pace University School of Law, where he was on the Law Review. He is a member of the American Immigration Lawyers Association, as well as the New York and Connecticut Bar Associations, and the Westchester County Bar Association.

Attorney Rogers, born in Brooklyn, is returning to college to earn a degree in foreign languages.

“Immigration is a dynamic area of law that can be as challenging and as complex as our tax laws,” she said. “Our secretary-paralegal was born in the Portuguese colony of Angola, Africa and speaks Portuguese and Spanish. Angelo speaks Italian. I thought it would be fun to round out our ‘United Nations’ law firm and become fluent in another language.”

Attorney Rogers received a bachelor of arts, cum laude, from Pace and a jurisprudence from Pace University School of Law. She is an active member of the Westchester Women’s Bar Association Judicial Screening Committee, and she is a member of the Connecticut Employment Lawyers Association and the New York Employment Lawyers Association.

She also serves on the Board of Directors of the Ridgefield Visiting Nurse Association and the Ridgefield Library. She is co-president of the Ridgefield Discovery Center.
With offices in Ridgefield and White Plains, Rogers & Tartaro, LLP, is a full service law firm specializing in business and not-for-profit law, commercial litigation, employment law, real estate and land use law, immigration law, and wills, trusts and probate.

 

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