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| Bar Bulletin |
August,
2003 |
| MSBA News |
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Not An Immigration
Lawyer? You Should Read This
By Ian P. Band
Most lawyers skip
over articles that mention the words “immigration” or “visa.” But what
many attorneys do not realize is that immigration issues can come up in
practices that have nothing to do with immigration law. Given the tragic
events of 9/11, the formation of the Department of Homeland Security
(DHS), the transfer of the functions of the Immigration and Naturalization
Service (INS) to various bureaus under DHS and the higher scrutiny and
public awareness of immigrants and immigration-related issues, it is
important for attorneys to be aware of immigration issues in their
practices. This article highlights some areas where immigration issues may
be lurking.
Labor and Employment
Immigration issues
are closely tied into labor and employment practices, since most
business-oriented immigration issues deal with the hiring of foreign
nationals and the processing of visa petitions and applications so that
the foreign nationals can work lawfully for US employers. In most
companies, human resources personnel work with outside counsel – either
the company’s counsel or the foreign national’s counsel – to prepare the
paperwork that is filed with the Bureau of Citizenship and Immigration
Services (BCIS, which handles the adjudication functions handled
previously by the INS), Department of Labor and the State Department.
However, when the in-house counsel team (with or without outside counsel)
is involved in a reduction in force, the immigration consequences are
often overlooked. For example, if a company terminates an H-1B visa holder
before the BCIS approval expires, the employer is liable for reasonable
return transportation costs of that individual. Once terminated, the
previously sponsored visa holding employee may no longer be maintaining
his or her status. The company has an obligation to notify the BCIS that
the individual is no longer employed and to request a revocation of the
approved petition. Also, many of the terminated visa holders request that
the employers keep them on the books until they find another sponsor.
While this may seem rather innocuous and nothing more than an
accommodation to the terminated employees, the BCIS could view it as a
fraudulent maneuver by the company meant to mislead the BCIS into
believing that the individuals are maintaining their status, which could
help them obtain an immigration-related benefit for which they may not be
entitled.
Also, when a
company receives from the Social Security Administration (SSA) a
“mismatch” letter stating that some of the Social Security numbers listed
do not match the names of the individuals, immigration issues are raised
since the employees may have used invalid Social Security numbers for
proof of employment authorization during the I-9 verification process at
the time of hire. It is important to advise clients how to respond to the
SSA and how to handle in a nondiscriminatory way the immigration issues
raised when SSA mismatch letters arrive.
Mergers and Acquisitions
During the merger
and acquisition process, attorneys often are unaware of the immigration
consequences of such corporate changes. This usually entails a change of
employers of visa-holding employees working for the acquired company. Such
changes may require supplemental filings with the BCIS to ensure that the
employee continues to be lawfully employed by the new employer. By way of
example, when Company A (a US corporation) purchases Company B (which is a
US corporation wholly-owned by a UK company), some of the acquired
employees may be present in the United States on investor, trade or
intracompany transfer visas. After the acquisition of Company B, the
individuals become employees of Company A. Unbeknownst to Company A, the
basis for the work-authorized visas no longer exists, and these
individuals are now working without authorization. It is important to
ensure that proper steps are taken to ensure that any supplemental filings
are made to maintain the continuity of the visa holders’ work
authorization – especially if the employees are essential to the
continuing successful operation of the acquired company.
Also, the acquiring
company becomes liable for the employment verification forms (Form I-9)
completed by the company to be acquired. It is important for the corporate
lawyer to ensure that the I-9s from the company to be acquired have been
reviewed as part of the due diligence exercises. There are both civil and
criminal penalties for failing to perform I-9 functions and/or for
knowingly falsifying the forms.
Criminal
Criminal attorneys
need to be especially careful when representing foreign nationals charged
with crimes. This applies not only to temporary visa holders but permanent
residents (“green card” holders) as well. While a case may seem like a
routine plea to a lesser crime, it could result in the detention and
deportation of the client. It is important for criminal attorneys to know
the immigration status of each and every client and to make sure that
there are no immigration-related repercussions to the handling of the
matter.
In this changing
world, it is important for attorneys practicing in all fields to be aware
of immigration issues that may be lurking in their clients’ matters. A
little bit of knowledge can certainly go a long way.
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