Employer Concerns with S. 2454 and HR 4437
HIDDEN MEASURES IN SENATE BILLS THREATENEMPLOYERS WITH LONG PRISON TERMS AND PROPERTY FORFEITURE
Long Prison Terms for Employers who show“Reckless Disregard” About Immigration Status.
Employment. H.R. 4437, S.2454, the Specter Mark passed by the Senate Judiciary Committee, and theproposed Hagel/Martinez compromise bill all include serious criminal penaltiesfor employers who employ the undocumented – even if the employer does notactually know that the person is not authorized to work, but just acted in“reckless disregard” of the fact.
An employer whoemploys ten such people in one year will be sentenced up to ten years infederal prison for a first offense – even if the judge finds that theemployer only acted recklessly in failing to find out the real truth about theemployee’s immigration status.
Transport and Shelter. In all bills, serious criminal penalties and property forfeiture apply if anemployer “moves or transports” an unauthorized person in a way that helps him live in the U.S. illegally if the government decides the employer acted in “reckless disregard” of whether he was unauthorized. .Courts have not clearly establishedwhether simply providing transportation to the worksite is “transporting” forthis purpose.
James providestransport to the worksite for his employees, and is charged with recklessdisregard of whether they are currently authorized. James may be subjectto a maximum 20 year sentence for the first offense oftransporting. A second conviction would require a mandatory minimum ofthree years in prison. The same might be true if heprovided worker housing, which in some cases is held to be “harboring.”
Submitting Applications. Employersare subject to the same draconian “visa fraud” penalties as immigrants. Amisstatement or omission in an application for a labor certification or L-1 orH-1 visa, or I-9 form, can carry a potential sentence of up to 15 years, or 20years for multiple violations.
Forfeiture. Besidesthe potential prison term, the law drastically expands the types of propertythat the government can seize based on a violation. Any real orpersonal property used to “commit or facilitate” this offense, or proceeds fromsuch property, or property traceable to such proceeds, is forfeit.
HIDDEN MEASURES IN IMMIGRATION BILLS THREATENTHE PROPOSED WORKER PROGRAMS AND FAMILY IMMIGRATION FOR YEARS TO COME
Misguided Immigration Penalties Will BlockWorkers from Gaining Legal Status for Years to Come and May Gut the ProposedLegalization Program
In H.R. 4437, S. 2454, and the Specter Mark thatpassed the Judiciary Committee, for the first time a noncitizen can becomeineligible for a green card or any other lawful status for admitting the useof false information to fill out an I-9 card to get a job. This provisioncould affect a huge proportion of the workers who hope to qualify for thecurrent jobs program, as well as millions of persons in the future.
Esteban used hisbrother-in-law’s social security card to complete an I-9 so that he could workto feed his U.S. citizen wife and child. He has been a key worker for the last fiveyears. Now he is going to apply for lawful status, and the officer willask him about the I-9. If Esteban tells the truth, he may be barred fromlawful status.
This provision may destroy the earnedlegalization programs. Neither the earnedlegalization provisions nor the AgJOB provisions in the Specter Mark or theother bills provide for any possible discretionary waiver for a personwho is barred due to visa/passport fraud, which may include lying on an I-9.[6] The Frist bill and H.R. 4437 apply this penalty retroactively to pastmisstatements and thus bar the very people who were supposed to qualify forstatus under the worker programs from applying. The Specter bill onlypunishes misstatements made on the date the law passes and afterwards, but itis unclear whether it will protect people who continue to work on the I-9 untilthey submit their applications. It will not protect people who submitI-9’s during the months it will take the government to begin the programs (or,in the case of the Hagel/Martinez compromise proposal, in the years it may takesome immigrants to “touch back” through a U.S. consulate to obtain employmentauthorization).
Moreover, workers in decades to come who haverun afoul of this rule will be unable to get a green card through a U.S. citizen family member or by other means unless they receive an extaordinary waiver.
Immigration laws should not target people whoseonly crime was to support their families and provide much-needed labor and havedone so in the context of a broken immigration system.
Immigrant Legal Resource Center and Immigrant Justice Network
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