WEBVTT - What You Need to Know About Immigration Law

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight an analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. Immigration has been

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<v Speaker 1>in the headlines a lot since President Trump took office,

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<v Speaker 1>But how much do Americans really know about the immigration laws? Well,

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<v Speaker 1>welcome to Immigration Law one oh one. Joining me is

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<v Speaker 1>Leon Fresco, a partner at hollanden Night. He was formerly

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<v Speaker 1>the Deputy Assistant Attorney General for the Office of Immigration

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<v Speaker 1>Litigation at the Justice Department. So Leon, let's start with

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<v Speaker 1>the coveted Green Card, which is actually pink, but was

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<v Speaker 1>one screen. It allows a lawful permanent resident to live

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<v Speaker 1>and work in the US. How does an immigrant get

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<v Speaker 1>a green card? Basically, there are three main ways. One

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<v Speaker 1>is through a family member, which is a spouse of parent,

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<v Speaker 1>or a child who is a U S. It is

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<v Speaker 1>in competition for their parents, their spouse or their child,

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<v Speaker 1>or they can petition for their sibling, but that takes

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<v Speaker 1>a lot longer. That's a lot twenty year process. That's

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<v Speaker 1>one way, and then the second way is that an

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<v Speaker 1>employer can petition for a person who is a foreign national,

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<v Speaker 1>and that employment petition can get someone a Green card.

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<v Speaker 1>And then the final way is the Diversity lottery that

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<v Speaker 1>the President talks about disparaging ly, But that's a lottery

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<v Speaker 1>of fifty green cards that's given a year where people

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<v Speaker 1>can apply and if they win the lottery, they can

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<v Speaker 1>get the green card. So most people are familiar with

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<v Speaker 1>nannygate stories. Since the law requires an employer to confirm

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<v Speaker 1>the work authorization of each new higher, what does an

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<v Speaker 1>employer have to do in practice with a new hire.

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<v Speaker 1>So at the moment, all that is the minimum requirement

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<v Speaker 1>is that the employer has to get two documents or

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<v Speaker 1>one if it's a passport, and the two documents have

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<v Speaker 1>to prove the the person is who they say they

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<v Speaker 1>are and that the person has legal work authorized status

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<v Speaker 1>in the United States. So the bare minimum that people

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<v Speaker 1>usually give, and that's the most prevalent for fraud, is

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<v Speaker 1>they give a fake driver's license and a fake social

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<v Speaker 1>Security card, both that have the same name and that

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<v Speaker 1>have a Social Security number on it. And as long

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<v Speaker 1>as those documents do not look blatantly fake, the employer

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<v Speaker 1>must by law except those documents as proof of ability

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<v Speaker 1>to work in the United States. What happens if they

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<v Speaker 1>do look fake, if the employer thinks they completely look fake. So,

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<v Speaker 1>as an example, you know, a three hundred pound man

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<v Speaker 1>gives a driver's license that says Mary Sullivan on it

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<v Speaker 1>or something. Then in that situation, the employer can choose

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<v Speaker 1>to reject it. But if it turns out that you

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<v Speaker 1>really did reject Mary Sullivan's application, then you can be

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<v Speaker 1>sued for discrimination, and actually that can cost you hundreds

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<v Speaker 1>of thousands of dollars and damages, and so the employers

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<v Speaker 1>really caught between the rock and a hard place. Under

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<v Speaker 1>the current system, what happens if the government finds out

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<v Speaker 1>that you've employed an illegal immigrant, So there's different gradations

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<v Speaker 1>of what happened. If it's the first time and it's

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<v Speaker 1>one person, the government usually just comes by and says,

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<v Speaker 1>get rid of this person, and that's the end of it.

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<v Speaker 1>If it's hundreds of people, then there's two kinds of violations.

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<v Speaker 1>There's what's called paperwork violations, which is that you didn't

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<v Speaker 1>actually do this test of the driver's license and the

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<v Speaker 1>social Security card, and you didn't keep records of having

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<v Speaker 1>done this, and that can be a couple of thousand

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<v Speaker 1>dollars per violation. They can charge less, but they can

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<v Speaker 1>charge up to a couple of thousand dollars per violation.

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<v Speaker 1>And then if there's what's called a pattern or practice

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<v Speaker 1>of knowingly hiring undocumented aliens for work, then in that

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<v Speaker 1>situation they can actually start putting people in the company

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<v Speaker 1>in jail or they can criminally charge the company, which

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<v Speaker 1>is again more fines would have to be paid. Ice

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<v Speaker 1>arrested just seventy two managers last year compared to more

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<v Speaker 1>than workers in these work site raids. And a case

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<v Speaker 1>in point is the recent raid in Mississippi where unsealed

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<v Speaker 1>documents alleged that some supervisors and managers knew or turned

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<v Speaker 1>a blind eye to the undocumented workers. Why are there

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<v Speaker 1>so few prosecutions of managers and employers, It's because the

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<v Speaker 1>legal standard is incredibly difficult. In order to charge employers

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<v Speaker 1>and for criminal penalties, you have to show a pattern

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<v Speaker 1>and practice. So that's more than one time that this

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<v Speaker 1>happened of knowingly not just accepting these documents and sort

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<v Speaker 1>of not knowing one way or the other, but of

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<v Speaker 1>knowingly employing an unauthorized alien who is knowingly unable to

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<v Speaker 1>work in the United States. So usually, in order to

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<v Speaker 1>not waste government resources, prosecutors will only charge employers in

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<v Speaker 1>cases where the employer has helped to procure fake documents

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<v Speaker 1>or has otherwise produced the fake documents for the employee

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<v Speaker 1>to use. Have you ever represented an employer or a

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<v Speaker 1>manager who was charged, not criminally charged, but I've represented

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<v Speaker 1>people who have received notices from ICE that there's something

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<v Speaker 1>problematic in their paperwork. That's in fact a large component

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<v Speaker 1>of my practice. Suppose you hire someone as an independent contractor.

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<v Speaker 1>If you hire someone as an independent contractor, of the

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<v Speaker 1>time you'll be able to avoid liability for an undocumented worker.

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<v Speaker 1>But you cannot do it if you know the reason

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<v Speaker 1>you know you're hiring the independent contractor is to evade

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<v Speaker 1>the immigration law. That is still a violation, and then

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<v Speaker 1>all of these fines and penalties that we've talked about

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<v Speaker 1>to kick in, and you can be criminally charged if

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<v Speaker 1>there is a pattern and practice of knowing violations. And nowadays,

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<v Speaker 1>is it harder to get a green card than it

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<v Speaker 1>used to be or are the law still basically the

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<v Speaker 1>same at this point? Well so, because there hasn't been

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<v Speaker 1>dramatic immigration reform since n the statutes have not changed.

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<v Speaker 1>What's happened is that each administration, as it comes in

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<v Speaker 1>it goes out, tends to weaken or strengthen their interpretations

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<v Speaker 1>of those statutes. And at the moment, we're at a

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<v Speaker 1>historic tightening of the evidentiary burdens that one puts forward

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<v Speaker 1>in order to obtain a green card. So everything is

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<v Speaker 1>being scrutinized at a much higher levels. On the employment category,

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<v Speaker 1>for instance, much more evidence of being required than ever before,

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<v Speaker 1>that a specific degree is needed to perform a specific

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<v Speaker 1>job that cannot be performed by any Americans before you

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<v Speaker 1>get the green card. It used to be, for instance,

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<v Speaker 1>if you said, well, okay, you genuinely need an m

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<v Speaker 1>b A to be an investment banker, that would be

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<v Speaker 1>enough because that's a typical route at n b A.

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<v Speaker 1>And then you become an investment banker. Now it would say, well,

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<v Speaker 1>why I does this investment banking position need this MBA?

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<v Speaker 1>I heard a rumor that somebody is doing investment banking

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<v Speaker 1>without an MBA, So doesn't that just prove that you

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<v Speaker 1>need one? And then can't you fill this with people

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<v Speaker 1>who don't have any degree? And so that's the kind

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<v Speaker 1>of scrutiny the government is putting on each case now,

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<v Speaker 1>making it much much more difficult having to prove that

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<v Speaker 1>every member of a profession has a certain degree in

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<v Speaker 1>order to make that degree a requirement to do the work.

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<v Speaker 1>Thank you so much for teaching us in immigration one

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<v Speaker 1>oh one, Lee, And I know you teach this in

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<v Speaker 1>law school, so thanks so much. That's Leon Fresco. He's

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<v Speaker 1>a partner at Hollanden Night. Thanks for listening to the

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<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

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<v Speaker 1>show on Apple Podcasts, SoundCloud and on bloomberg dot com

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<v Speaker 1>slash podcast. I'm June Brosso. This is Bloomberg