Immigration Customs and Enforcement (ICE) Director, John Morton, recently released a memorandum on prosecutorial discretion.  The memo does not completely fix the country’s current dysfunctional immigration system, but it holds promise and does represent a good faith attempt by Mr. Morton to move towards smart immigration enforcement.
The memorandum will allow ICE agents and trial attorneys to concentrate the country’s limited law enforcement resources on going after dangerous criminals and terrorists instead of hardworking immigrants who just happen to be tangled up in our messy immigration system.
Many are skeptical about Morton’s memo and are afraid that it would have the same fate as the first memorandum on prosecutorial discretion known as the Meissner Memo.  The Meissner Memo came in response to a letter of protest from a bipartisan group to then Attorney General Janet Reno and INS Commissioner Doris Meissner regarding the Administration’s failure to use prosecutorial discretion on dangerous immigration violators.  The Meisner Memo limited prosecutorial discretion to cases that presented “substantial federal interest,” but it did not define that it meant.  The Morton Memo, on the other hand, provides more guidance by applying a standard to determine when to use discretion.  The question becomes whether a particular case meets the Administration’s enforcement priorities which were defined in another Morton Memo on March 2, 2011 and focuses on dangerous criminals and national security risks.
According to Morton’s memo, prosecutorial discretion can be used affirmatively by ICE at any stage of removal proceedings even when a case is being appealed in circuit court.  However, use of discretion is preferred at the early stage of proceedings to avoid unnecessary expense to the government.  Perhaps most compelling about Morton’s memo is that it gives ICE agents and trial attorneys the authority to do what is right by using discretion.  At the very least, the memo allows ICE agents and trial attorneys to focus our country’s resources on those dangerous individuals who pose a threat to our communities and country.
The memorandum can be found at:   http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf

March 2, 2011 Morton Memo: http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf

Meissner Memo:    http://www.scribd.com/doc/22092970/INS-Guidance-Memo-Prosecutorial-Discretion-Doris-Meissner-11-7-00

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The timing of the Indiana immigration bill is interesting, as Indiana just opened an expended convention center in Indianapolis, after razing the RCA Hoosier Dome and building the Lucas oil Stadium, as part of a multi-million effort to draw more conventioneers to Central Indiana.  Then, there is the anticipated 2012 Super Bowl, which is currently at issue with the NFL labor dispute dragging on through court-ordered mediation.  Local officials have not been pleased that the immigration law has been openly debated in the press, while those officials are struggling to attract new conventions, trade shows and tourism to Central Indiana to fill a new and very large convention center during the worst recession since the Great Depression.

Ironically, all these factors have probably made the passage of the bill more difficult, despite high unemployment and growing frustration that the federal government is not adequately addressing illegal immigration.  As a result, the bill has been changed substantially.  The bill now focuses on imposing tax penalties against employers who knowingly hire illegal immigrants.  The final bill might contain a provision that would require Indiana to determine the costs of illegal immigration and seek reimbursement from the U.S. Congress.

•  Do NOT tell an employee which documents to present to demonstrate work eligibility.  Simply give the employee the approved governmental list.
• Do NOT reject a document unless it is clearly a forgery, or there are signs of document tampering. You are not required to be an document or handwriting expert, but you can exercise common sense.
• Do NOT reject a document simply because it differs from the approved governmental list.
• Do NOT accept photocopies of any qualifying documents.  Because you cannot inspect a laminated social security card, don’t accept them.
• Do NOT consider when an employee’s work eligibility is to expire, no matter how close that date is to the hiring date.

An Immigration Lawyer Can Help

You can avoid problems when hiring foreign workers by consulting an immigration attorney who can train you or your human resource personnel about proper procedures.   Or, consider training seminars for you or key staff.

Audit Your Records Before the Government Does

Audit your I-9 records and correct any errors. Again, you may want to consult a knowledgeable immigration attorney.

If you are inspected by the Department of Homeland Security:

• Do NOT consent to an immediate inspection if DHS agents show up without notice.  You have up to three days to respond. And, call your immigration attorney or business attorney immediately.
• Do NOT let DHS agents take original records.  Provide copies.
• Do NOT allow DHS agents to talk with your employees before you call your attorney.
• If Department of Labor agents show up for an inspection without notice, decline the inspection. The DHS will be notified, and an inspection will be triggered.
• If DHS discovers technical errors on I-9’s, you get 10 days to correct the I-9’s.

There are not many knowledgeable attorneys who deal with business immigration law or who will be savvy about employer compliance issues. Lawyers who deal with immigration law, business law, and labor rules can best handle compliance issues, and any litigation arising from a DHS inspection.

Preventing problems is the best approach.  Make a small investment in training your staff, developing compliance systems and consulting with a good immigration lawyer, before problems arise.

Tiffany U. Vivo is an Indianapolis immigration lawyer.  She also practices family law.  Ms. Vivo appears before the Immigration Court (EOIR), the United States Citizenship & Immigration Service (USCIS), the Board of Immigration Appeals (BIA) and state and federal courts in Indiana and Illinois.  She is a member of the Indiana State Bar, the Indianapolis Bar Association, and the national and local chapters of the American Immigration Lawyers Association (AILA).

I-9 forms are actually a positive thing for employers, because I-9 forms provide employers with a “good faith” defense if the employer hires a worker who is actually working illegally in the United States.

Employers can obtain I-9 forms from the DHS (800-870-3676), or download them from the agency’s Web site. You can also write to the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402.

DHS can start an investigation about a company employing illegal workers at any time.  An employer can be fined and sanctioned for hiring an undocumented worker.  The standard in judging the wrongfulness of the employer’s conduct is whether a reasonable person would believe the employee was illegally employed.

Every employer must complete I-9 forms, even if the employer has just one employee.  Hiring independent contractors does not trigger the requirement to complete an I-9 form.

If you, as an employer, receive information and documents that, on their face, appear valid and consistent, you do not need to investigate further. However, if you receive obvious forgeries, information that does not match the employee, or other data that makes you think you should ask more questions, then you need to continue your inquiry as to the employee’s immigration status.

A good business practice is to conduct yourself an audit or hire an immigration lawyer to audit your I-9’s and supporting documents to be sure they comply with the law.  Here are some do’s and don’ts when going through the I-9 verification process:

• During an employee’s first day, give the employee a list of documents that can be used to verify status.
• Determine if the employee already has employment authorization.
• Ask questions about name changes.
• Make sure documents provided by the employee are on the lists of acceptable documents.  A good immigration attorney can help you with these lists.
• Review documents for authenticity. Are there obvious signs of tampering or forgery?  Reject documents if they are clearly fakes.  If a document looks valid on its face and is listed as a qualified document on the I-9, accept the document.
• Retain I-9’s for three years, or one year after employment ends, whichever is longer.  I-9 forms can be inspected by DHS on three days’ notice, without even a warrant or subpoena.

Employers cannot discriminate against an employee because of citizenship status or national origin through “document abuse,” which is asking the employee for more documents than necessary or different documents to prove employment eligibility.  However, employers do have duties to confirm employment eligibility as outlined in this post.

This post is certainly not comprehensive, and I encourage my employer-clients to conduct immigration and I-9 audits annually.  An immigration attorney can give you guidance in systematizing these processes to ensure DHS compliance.

Tiffany U. Vivo is an Indianapolis immigration and family law attorney. She practices exclusively in immigration and family law, and lectures and writes frequently on immigration law for businesses, employees and families.  For more information, please contact her at the above addresses and phone numbers.