Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight an analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. Immigration has been
Speaker 1: in the headlines a lot since President Trump took office,
Speaker 1: But how much do Americans really know about the immigration laws? Well,
Speaker 1: welcome to Immigration Law one oh one. Joining me is
Speaker 1: Leon Fresco, a partner at hollanden Night. He was formerly
Speaker 1: the Deputy Assistant Attorney General for the Office of Immigration
Speaker 1: Litigation at the Justice Department. So Leon, let's start with
Speaker 1: the coveted Green Card, which is actually pink, but was
Speaker 1: one screen. It allows a lawful permanent resident to live
Speaker 1: and work in the US. How does an immigrant get
Speaker 1: a green card? Basically, there are three main ways. One
Speaker 1: is through a family member, which is a spouse of parent,
Speaker 1: or a child who is a U S. It is
Speaker 1: in competition for their parents, their spouse or their child,
Speaker 1: or they can petition for their sibling, but that takes
Speaker 1: a lot longer. That's a lot twenty year process. That's
Speaker 1: one way, and then the second way is that an
Speaker 1: employer can petition for a person who is a foreign national,
Speaker 1: and that employment petition can get someone a Green card.
Speaker 1: And then the final way is the Diversity lottery that
Speaker 1: the President talks about disparaging ly, But that's a lottery
Speaker 1: of fifty green cards that's given a year where people
Speaker 1: can apply and if they win the lottery, they can
Speaker 1: get the green card. So most people are familiar with
Speaker 1: nannygate stories. Since the law requires an employer to confirm
Speaker 1: the work authorization of each new higher, what does an
Speaker 1: employer have to do in practice with a new hire.
Speaker 1: So at the moment, all that is the minimum requirement
Speaker 1: is that the employer has to get two documents or
Speaker 1: one if it's a passport, and the two documents have
Speaker 1: to prove the the person is who they say they
Speaker 1: are and that the person has legal work authorized status
Speaker 1: in the United States. So the bare minimum that people
Speaker 1: usually give, and that's the most prevalent for fraud, is
Speaker 1: they give a fake driver's license and a fake social
Speaker 1: Security card, both that have the same name and that
Speaker 1: have a Social Security number on it. And as long
Speaker 1: as those documents do not look blatantly fake, the employer
Speaker 1: must by law except those documents as proof of ability
Speaker 1: to work in the United States. What happens if they
Speaker 1: do look fake, if the employer thinks they completely look fake. So,
Speaker 1: as an example, you know, a three hundred pound man
Speaker 1: gives a driver's license that says Mary Sullivan on it
Speaker 1: or something. Then in that situation, the employer can choose
Speaker 1: to reject it. But if it turns out that you
Speaker 1: really did reject Mary Sullivan's application, then you can be
Speaker 1: sued for discrimination, and actually that can cost you hundreds
Speaker 1: of thousands of dollars and damages, and so the employers
Speaker 1: really caught between the rock and a hard place. Under
Speaker 1: the current system, what happens if the government finds out
Speaker 1: that you've employed an illegal immigrant, So there's different gradations
Speaker 1: of what happened. If it's the first time and it's
Speaker 1: one person, the government usually just comes by and says,
Speaker 1: get rid of this person, and that's the end of it.
Speaker 1: If it's hundreds of people, then there's two kinds of violations.
Speaker 1: There's what's called paperwork violations, which is that you didn't
Speaker 1: actually do this test of the driver's license and the
Speaker 1: social Security card, and you didn't keep records of having
Speaker 1: done this, and that can be a couple of thousand
Speaker 1: dollars per violation. They can charge less, but they can
Speaker 1: charge up to a couple of thousand dollars per violation.
Speaker 1: And then if there's what's called a pattern or practice
Speaker 1: of knowingly hiring undocumented aliens for work, then in that
Speaker 1: situation they can actually start putting people in the company
Speaker 1: in jail or they can criminally charge the company, which
Speaker 1: is again more fines would have to be paid. Ice
Speaker 1: arrested just seventy two managers last year compared to more
Speaker 1: than workers in these work site raids. And a case
Speaker 1: in point is the recent raid in Mississippi where unsealed
Speaker 1: documents alleged that some supervisors and managers knew or turned
Speaker 1: a blind eye to the undocumented workers. Why are there
Speaker 1: so few prosecutions of managers and employers, It's because the
Speaker 1: legal standard is incredibly difficult. In order to charge employers
Speaker 1: and for criminal penalties, you have to show a pattern
Speaker 1: and practice. So that's more than one time that this
Speaker 1: happened of knowingly not just accepting these documents and sort
Speaker 1: of not knowing one way or the other, but of
Speaker 1: knowingly employing an unauthorized alien who is knowingly unable to
Speaker 1: work in the United States. So usually, in order to
Speaker 1: not waste government resources, prosecutors will only charge employers in
Speaker 1: cases where the employer has helped to procure fake documents
Speaker 1: or has otherwise produced the fake documents for the employee
Speaker 1: to use. Have you ever represented an employer or a
Speaker 1: manager who was charged, not criminally charged, but I've represented
Speaker 1: people who have received notices from ICE that there's something
Speaker 1: problematic in their paperwork. That's in fact a large component
Speaker 1: of my practice. Suppose you hire someone as an independent contractor.
Speaker 1: If you hire someone as an independent contractor, of the
Speaker 1: time you'll be able to avoid liability for an undocumented worker.
Speaker 1: But you cannot do it if you know the reason
Speaker 1: you know you're hiring the independent contractor is to evade
Speaker 1: the immigration law. That is still a violation, and then
Speaker 1: all of these fines and penalties that we've talked about
Speaker 1: to kick in, and you can be criminally charged if
Speaker 1: there is a pattern and practice of knowing violations. And nowadays,
Speaker 1: is it harder to get a green card than it
Speaker 1: used to be or are the law still basically the
Speaker 1: same at this point? Well so, because there hasn't been
Speaker 1: dramatic immigration reform since n the statutes have not changed.
Speaker 1: What's happened is that each administration, as it comes in
Speaker 1: it goes out, tends to weaken or strengthen their interpretations
Speaker 1: of those statutes. And at the moment, we're at a
Speaker 1: historic tightening of the evidentiary burdens that one puts forward
Speaker 1: in order to obtain a green card. So everything is
Speaker 1: being scrutinized at a much higher levels. On the employment category,
Speaker 1: for instance, much more evidence of being required than ever before,
Speaker 1: that a specific degree is needed to perform a specific
Speaker 1: job that cannot be performed by any Americans before you
Speaker 1: get the green card. It used to be, for instance,
Speaker 1: if you said, well, okay, you genuinely need an m
Speaker 1: b A to be an investment banker, that would be
Speaker 1: enough because that's a typical route at n b A.
Speaker 1: And then you become an investment banker. Now it would say, well,
Speaker 1: why I does this investment banking position need this MBA?
Speaker 1: I heard a rumor that somebody is doing investment banking
Speaker 1: without an MBA, So doesn't that just prove that you
Speaker 1: need one? And then can't you fill this with people
Speaker 1: who don't have any degree? And so that's the kind
Speaker 1: of scrutiny the government is putting on each case now,
Speaker 1: making it much much more difficult having to prove that
Speaker 1: every member of a profession has a certain degree in
Speaker 1: order to make that degree a requirement to do the work.
Speaker 1: Thank you so much for teaching us in immigration one
Speaker 1: oh one, Lee, And I know you teach this in
Speaker 1: law school, so thanks so much. That's Leon Fresco. He's
Speaker 1: a partner at Hollanden Night. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud and on bloomberg dot com
Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg