Texas Immigration Lawyer & Attorney : Kraft & Associates Law Firm : Visas, Green Card, Citizenship, Deportation : Dallas, Texas

The San Luis Obispo Tribune has an excellent article today on the potential impact of the government's new "no match" letters on employers. Here are excerpts:

Businesses across San Luis Obispo County are closely watching a federal court decision expected Monday that could lead to greater workplace enforcement of illegal immigration.

The decision involves the legality of a new U.S. Department of Homeland Security rule that focuses on a company's responsibility in verifying employment eligibility, based on letters that the Social Security Administration sends out.

"The rule has a lot of people fearful because there are many employers on the Central Coast that have received those letters in the past," said Richard Quandt, president of the Grower-Shipper Vegetable Association of San Luis Obispo and Santa Barbara Counties. "They assume they will receive them again."

At issue are new responsibilities that businesses would have to assume to verify the legal status of their workers. Failure to do so could subject a business to fines or even criminal charges, should an investigation be done and the firm be found to have knowingly employed workers without legal residency.

For nearly three decades, the Social Security Administration has contacted employees when their name and Social Security number do not match. Employers with more than 10 employees with mismatches also get a letter, also known as the "no-match" notification.

Until now, employers were recommended to not take any adverse action against an employee based solely on the letter.

But the nature of the letters is set to change as the government puts a greater onus on employers.

In August, Homeland Security announced that no-match letters would now be accompanied by notices from the U.S. Immigration and Customs Enforcement, the largest investigative arm of the department. Outlining what it calls a "safe harbor" for employers, the ICE insert identifies the necessary steps that will protect employers from civil fines or criminal charges.

Homeland Security clearly states that receiving a nomatch letter and not following the guidelines could be construed as knowingly employing illegal immigrants.

However, a lawsuit filed in late August by several labor union groups, including the AFL-CIO, halted distribution of the letters, which was set to begin in mid-September. The suit claims that the rules would violate workers' rights and unfairly burden employers.

A judge with the U.S. District Court for the Northern District of California then issued a nationwide temporary restraining order blocking the Social Security Administration from sending the letters with the inserts. The order is in effect until Monday, when another federal judge will decide how to proceed.

"It's important for employers to know we have dramatically increased enforcement, and are increasingly relying on criminal prosecution of businesses, as opposed to fining them, as we have done in the past," said Virginia Kice, a spokeswoman for ICE.

Indeed, work-site enforcement targeting illegal immigrants is up substantially in the last two years. Criminal prosecutions nationally have jumped from 25 in 2002 to 176 in 2005 to 742 in the first seven months of 2007. Felony charges that can be brought include harboring illegal immigrants, which carries a potential 10-year prison sentence, and money laundering, which can mean a potential 20-year prison term.

Homeland Security has also announced that in the near future, the penalty for this offense will increase by about 25 percent. Currently, the fines range from $275 to $2,200 per worker for the first violation and increase for additional violations.

"We have discovered that fines are not effective; many people consider that the cost of doing business," Kice said. "People should know we are also ready to seize a business's assets, as we have done in a recent case."

California businesses are set to receive most of the letters that are going to about 140,000 employers. The Social Security Administration has posted on its Web site that it intends to send out 35,675 nomatch letters to California employers this year for the 2006 tax year. That's nearly three times more than the next highest-scrutinized state, Texas. County-specific data are not available.

County employers--across industries such as agriculture, construction, lodging, restaurants and health care -- are confused and concerned about the rules and the extent to which they will be enforced.

"There is a fair amount of misunderstanding among employers about this rule," said Carl Borden, associate counsel with the California Farm Bureau Federation in Sacramento. He has been making presentations over the past month about the rule to agriculturalists throughout California, including a stop in Paso Robles.

"Merely failing to follow the rules doesn't in and of itself put them in jeopardy. But following it does protect them in the future," Borden said.

Borden explained that fear is one of the intended goals of the new rule.

"Regardless of how the court case turns, I'm sure we are going to see some high-profile enforcement actions," he said. "Part of that will be to scare all employers into thinking that they better follow the safe-harbor steps."

In announcing the rules, Secretary of Homeland Security Michael Chertoff acknowledged that the agency would "rely on a lot of self-policing" like with the tax code.

That's because the Social Security Administration is prohibited from sharing private data with other governmental agencies such as Homeland Security. No-match related fines and charges are anticipated to arise if there are employer audits or raids, Borden said. The letter is evidence of "constructive knowledge of an employee's lack of work authorization."

"There are some real enforcement issues with this," he said. "A lot of what it comes down to is deterrence."

That "puts the employer in the position of being the policemen," said Karen Ross, president of the California Association of Winegrape Growers.

Dana Merrill, president of Mesa Vineyard Management in Templeton, has attended four different presentations on the rule, and says he is still somewhat hazy on what is going to happen when the safe harbor timeline expires. His company employs about 150 people and hires an additional 200 workers through labor contractors during peak periods.

"I think employers want to do the right thing, but we're not clear what that is," said Merrill, who has received nomatch letters in the past. "We are hearing some pretty scary stories about what could happen to employers if we don't follow the steps, but I don't know if we'll get sued if we fire people."

Ross said that this is a common worry because employers must operate within strict parameters to avoid the potential of discrimination lawsuits. Homeland Security recommends employee termination if a Social Security mismatch can't be cleared up or the employee's employment eligibility is not re-verified within 93 days.

But the existing Social Security guidelines -- which remain unchanged--specifically state that employers should not use the letter alone "to take any adverse action against an employee, such as laying off, suspending, firing or discriminating against an employee."

"We have gotten so many calls and questions," Ross said. "Employers are scared. They are not sure how to act, and they are worried that employees will be scared away from the job."

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At Kraft & Associates, we recently had an inquiry from a soldier who had just returned from Iraq. He had promised his Iraqi translator that he would try to help the translator gain entry into the United States.

We had to tell this good-hearted military man that the United States has been embarrassingly slow to admit any Iraqi citizens into our country, including those who risked their lives by helping our military. This year alone, Switzerland has accepted thousands of Iraqi refugees, while the United States has accepted only a few hundred, almost all of those in the past two months.

However, there may be something that can be done for these people. Depending on the exact situations and the eligibilities, they may be able to enter the U.S. as Special Immigrants. Translators for the U.S. Armed Forces may be eligible to enter the United States, and are protected under the National Defense Authorization Act.  To benefit from this act they must demonstrate the following:

• National of Iraq or Afghanistan;
• worked directly with U.S. Armed Forces as a translator for a period of at least 12 months;
• obtained a favorable written recommendation from a general or flag officer in the chain of command;
• cleared a background check and screening as determined by the general or flag officer before filing the petition; and
• they are otherwise admissible except for 212(a)(4) (public charge)

They must file their petitions on form I-360.  The biggest hurdle to overcome is that there are only 50 visas available per year. Spouse and children may accompany or follow to join if the principal applicant is approved.

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The news (and protests) about the City of Irving's policy of reporting the immigration status of everyone stopped for a traffic violation or detained by the police for any other reason has many immigrants afraid to live in or even drive through Irving.

Whether you're a legal or illegal immigrant or an American citizen, it can be helpful to know how best to avoid being stopped by the police for any reason.

First and foremost, know and obey all traffic laws. The best source for learning the rights and responsibilities of Texas drivers is the Texas Drivers Handbook, available free from the Web site of the Texas Department of Public Safety.

Obviously the police will, and should, stop any driver who runs a red light, speeds, doesn't come to a complete stop at a stop sign, or commits some other major traffic violation. But police look for other, less obvious, driving errors also. They are trained to do this in order to get drunk drivers off the road, but it's a good idea for each of us to know what activities might catch the eye of a patrol officer.

There are preventive steps you can take to avoid being stopped. Many of these steps will help you avoid making the driving mistakes that might lead a police officer to decide to pull you over.

Let's assume you are about to drive a car. If you are at all uncomfortable or unfamiliar with the car you are driving, you are much more likely to make mistakes or drive erratically. And if you are not driving well, you are more likely to get stopped by a police officer.

If you are driving a car you are not used to--a friend's car, a car you just bought, or a car you have not driven in awhile--it is important that you take a moment to remind yourself where everything is before you start to drive: emergency brake, transmission, turn signals, windshield wipers, headlights, high beams, hazard lights, and so on. To get an overall feel for the car, just grip the steering wheel and put your foot on the brake. Also make sure that the seat and steering wheel are adjusted properly for you.

Taking a few seconds to do this is especially important if you are used to driving a car with a different kind of transmission. If, say, you are driving an automatic when you are accustomed to a manual, spending a minute or two to familiarize yourself with the car can make the difference between getting where you are going safely and slamming on the brake in a frantic search for a non-existent clutch.

Also make sure everything on the outside of your vehicle is in working order and that your vehicle registration tags are current. Police officers often use a minor vehicle infraction like broken taillights or expired registration tags as a reason to stop a vehicle. Things like broken taillights are especially likely to get you pulled over at night when they can be easily seen.

Before you start driving, know where you are going, how to get there, and how to get back home. Getting lost and trying to find the right road will inevitably lead to errors in your driving.

If the unfortunate occurs, and you are stopped, know your rights and what to expect when you are pulled over.

If you have any questions about these matters, please contact Kraft & Associates.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and DFW Immigration Law Blog.

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The Dallas Morning News has an article today about a large protest of the immigration policies of the city of Irving, a suburb of Dallas. In a nutshell, Irving's policy is to check the immigration status of anyone detained or arrested in the city. This has resulted in a very large number of immigrants who have been deported after being stopped for a traffic violation or other minor infraction.

Obviously there are two schools of thought on this subject. One is that any person here illegally should be found and deported. The other is that a city has no business trying to enforce a federal law, and it's disruptive to the community and to the lives of individuals for good, hard-working people to be deported just because they got traffic tickets.

Here are excerpts from the Dallas Morning News article:

Angered over a record number of recent deportations in Irving, more than 1,000 protesters waved U.S. flags and chanted "We are America" as they rallied Wednesday night at City Hall.

Demonstrators called for Irving officials to put a moratorium on turning over suspected illegal immigrants to federal officials until immigration laws are reformed nationally. They also urged people to call Mayor Herbert Gears and ask him to stop deporting people from the city's jail.

"We need to raise our voice and we need to ask for changes about the things we don't like here," said Hector Flores, a leader in Irving's Hispanic community.

A few people who support the deportations carried signs in favor of the illegal immigration enforcement.

"Our compassion starts at home, and our charity starts at home," said Sue Richardson, a longtime Irving resident and vice president of the Greater Irving Republican Club.

At the heart of the contention is Irving police's use of the Immigration and Customs Enforcement's Criminal Alien Program. The plan provides for round-the-clock communication with federal authorities and is designed to detain illegal immigrants who have been accused of a crime. It's the latest tool being used by local governments in the absence of a federal overhaul of immigration laws.

"It does not deal with illegal aliens; it deals with criminal illegal aliens," said Irving City Council member Tom Spink.

Tensions over the practice have simmered for months among residents, officials and City Council colleagues. But the program has recently become a lightning rod for controversy with publicity about the growing number of people Irving police hand over to federal officials for deportation each month.

Opponents say police are overzealous. Supporters believe the program is the perfect answer to a national problem. And some residents and council members say police still aren't going far enough to combat illegal immigration.

Irving police have turned over at least 1,600 people to Immigration and Customs Enforcement since June 2006. In response, Mexican Consul Enrique Hubbard Urrea last week warned immigrants from his country to avoid Irving. And community leader Carlos Quintanilla said he would organize a boycott of Irving businesses if the city persisted.

Opponents of the program say Irving police are unfairly targeting Hispanics. They say that many Hispanics have become afraid of police and that families are being torn apart as parents are deported thousands of miles from their children.

"This isn't justice," said Deyla Reyes, a Northlake College student. "We need to stop this. These people have come here to work. We cannot support this program."

Many people at the rally accused Irving police of racial profiling and turning Hispanics over for deportation because of minor traffic infractions.

"We're not just hurting people driving without driver's licenses," said Luis DeLaGarza, a political consultant who helped organize the rally. "We are hurting the economy in Irving. We need to have immigration reform."

Mr. Gears said a major part of the problem isn't Irving's policy. Instead, it's lack of knowledge of the law. He said many people - including natural-born citizens and legal immigrants - aren't aware of consequences that come with traffic citations, which can include license suspension. And many minorities, he said, wrongly assume that police officers who ask for identification are trying to prove citizenship.

Mr. Gears said he has overseen investigations into every complaint about the program but has found no wrongdoing or malice on the department's part.

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Update to my post of September 9, 2007, about Mexican trucks being allowed deeper into the United States:

The Senate voted this past week to ban (again) Mexican trucks from U.S. highways.  By a 74-24 vote, the Senate approved a proposal by Sen. Byron Dorgan (D-N.D.) prohibiting the Department of Transportation from spending money on its pilot program  to give Mexican trucks greater access to the United States.

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The Dallas Morning News had an interesting article about nonemergency hospital services for illegal immigrants in Fort Worth. Here are excerpts:

A poor illegal immigrant who goes to the John Peter Smith Hospital emergency room in Fort Worth gets the same care at the same price as any other indigent resident.

The Rev. Sergio Diaz is working to expand health care services available for illegal immigrants in Tarrant County.

But the same person who goes to a JPS clinic for nonemergency treatment is often faced with a hefty bill. Unlike other large urban public hospital systems in Texas, JPS excludes illegal immigrants from its charity program that provides preventive healthcare.

Trying to balance politics, medicine and money, the Tarrant County Hospital Board of Managers will debate and possibly decide Tuesday whether to spend millions to provide free or low-cost nonemergency medical care to thousands of illegal immigrants.

The Rev. Sergio Diaz of Iglesia San Miguel, an Episcopal church in Fort Worth, said he has been fighting for this issue because of the damage caused by inadequate health care. He said members of his church - many of them illegal immigrants - can't get preventive health care and that some have died from complications from treatable diseases such as diabetes.

"This touches my heart because most of my people are immigrants," said Mr. Diaz, a member of Allied Communities of Tarrant. "I've seen a lot of people suffering."

Health care has become a major part of the national debate about illegal immigration, and the costs even led Dallas County officials to send bills to Mexico and other countries demanding payment for some of its expenses at Parkland Memorial Hospital.

The debate has also been simmering for more than a year in Tarrant County, where Allied Communities of Tarrant, a coalition of churches and social-justice activists, has pushed for the expansion of charity care. At the same time, a local conservative group favoring a crackdown on illegal immigration has been urging the board to retain the existing policy.

Dennis Killy, a member of the Tarrant Alliance for Responsible Government, said expanding cheap health care to illegal immigrants is an insult to citizens and to those who came to the United States legally. It simply rewards those who ignore federal law, he said.

"Where does it end?" Mr. Killy said. "When do we stop paying our tax money for something we're getting nothing for?"

Mr. Killy said he believes a significant majority of board members support his group's position and would not change the JPS policy. Officials with Allied Communities of Tarrant said they think it's going to be a closer vote.

Three board members, Erma C. Johnson Hadley, Dan Serna and Ronnie W. Coulson, all declined to comment on how they might vote.

"It's my obligation to leave my mind open," Mr. Serna said.

Mrs. Johnson Hadley, board chairwoman, said this is a difficult decision that generates strong opinions and mixed emotions among many people. She said she met with Sen. John Cornyn and told him that this is something that needs to be addressed in Washington.

"We feel somewhat put out that we're having to deal with a federal issue," she said.

People supporting a tougher stance on illegal immigration see this as a critical financial issue. They worry that a change in policy will cost taxpayers dearly.

The cost of this possible expansion, however, depends on who's adding the numbers.

The hospital district hired Phase 2 Consulting of Austin to conduct a study, which was released in July.

Estimating the number of illegal immigrants in Tarrant County at 107,000, the study calculated that expanding the charity program would cost the hospital district an additional $41.3 million right now. That number would increase to $114.4 million by 2017, according to the study.

Allied Communities of Tarrant conducted its own study in February that came to a dramatically different conclusion. Quoting 18th-century literary figure Samuel Johnson and a passage from the Bible's book of Leviticus in the introduction, the alternative study estimated the cost to be between $2 million and $4.2 million added to the hospital district's $600 million-plus budget.

Parkland officials estimated their cost for nonemergency care for illegal immigrants was $22.4 million in the past year - about halfway between the two Tarrant County estimates.

Patricia Gaffney, a member of Allied Communities of Tarrant who helped research and write the report, challenged some of the basic assumptions of the Phase 2 study. She said that study projects a 56 percent increase in Tarrant County's illegal immigrant population in the next decade even though federal reports show that illegal immigration is decreasing.

Ms. Gaffney also said the Phase 2 study overestimates the number of illegal immigrants who would use the service. Many are wary of government programs because of their immigration status, she said.

Mr. Killy said he is more likely to believe an independent, third-party report than one created by a group advocating for one side of the issue.

Dave McElwee, another member of Tarrant Alliance for Responsible Government, said that aside from the immediate cost, he also worries about the message that expanded health care would send.

"I think there ought to be programs for the indigent but not for those in the country illegally," he said. "All this does is act as a magnet for other illegals." 

If the board votes Tuesday to expand health care, it's not clear how quickly such a change would be implemented, JPS senior vice president Robert Earley said. He said the board and Tarrant County Commissioners have already approved the 2007-08 budget, and no funds are set aside for additional health care costs for illegal immigrants.

This is the second time this issue has come up for Tarrant County. For part of 2004, the board opened up all its programs to illegal immigrants. JPS officials were uncertain about whether a new state law allowed or mandated them to provide nonemergency charity services to illegal immigrants. Mr. Early said a ruling by the Texas attorney general and statements of intent from the sponsor clarified that the law didn't require the expansion.

At the time, JPS officials said the expanded program cost them up to $4 million for six months. Mr. Earley said the participation was probably limited three years ago because the program wasn't actively promoted by the hospital district and there were questions about how long it would last.

The board voted in August 2004 to make immigration status a factor for the JPS charity nonemergency care.

Officials with Allied Communities of Tarrant and the Texas Hospital Association also said most urban public hospitals in the state don't limit health care service because of immigration status, but neither had conducted a comprehensive study.

Dr. Ron Anderson, chief executive of Parkland Memorial Hospital, which does not exempt illegal immigrants from its charity programs, said the decision by JPS did not affect his system.

But he said that it makes sense to get all low-income residents preventive health care in neighborhood clinics. When he came to Parkland in 1982, the system had no clinics and about 182,000 emergency-room visits annually.

Since then, the system opened neighborhood clinics countywide, and the emergency-room visits fell to 145,000 even though the population has nearly doubled.

"The truth is, if you don't provide this care in the clinic, you'll provide this service in the emergency room," Dr. Anderson said.

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Reuters news service reported on the Democratic debate Sunday night in Florida, and said the candidates were attempting to win over Hispanic voters with promises of comprehensive immigration reform. The debate was broadcast in Spanish on Univision. Here are excerpts from the article:

New Mexico Gov. Bill Richardson, who would be the first Hispanic U.S. president, said, "I object to the dehumanizing of people that want to be part of the American dream."

He and Connecticut Sen. Chris Dodd are the two fluent Spanish speakers in the Democratic field.

"The politics of fear are the most dangerous politics in our country, and those people who deal with fear and frighten the American people on this issue ought to be dealt with accordingly," Dodd said at the University of Miami debate, billed as a discussion of issues crucial to Hispanic voters.

Hispanics are the country's biggest and fastest-growing minority group, accounting for about 15 percent of the population and at least 14 million potential voters in 2008.

President George W. Bush won 40 percent of the Hispanic vote in 2004, but Democrats see a growing opportunity to win over Hispanics alienated by the hard-line Republican stance on immigration.

Efforts at a comprehensive overhaul of immigration laws collapsed in the U.S. Congress amid a bitter debate on the future of undocumented workers and illegal immigrants in the United States, many of whom are Hispanic.

The Democrats condemned a bill passed last year by the then Republican-led House of Representatives but never approved by the full Congress that cracked down on illegal aliens and boosted border security efforts.

Richardson lampooned plans to build a fence along the Mexican border to protect against illegal immigration.

"If you're going to build a 12-foot wall, you know what's going to happen? A bunch of 13-foot ladders," Richardson said.

But Clinton, Obama and Dodd defended their votes to build a wall, included in a Senate immigration bill not passed by the full Congress, as a necessary part of greater border security.

"We've got to secure our borders. That has to be part of comprehensive immigration reform," Clinton said.

The questions were asked in Spanish and the candidates heard English translations through earpieces. All the candidates answered in English and were translated for the Spanish-language audience.

Richardson complained about the restrictions on speaking in Spanish.

"I'm very proud to be the first major Latino candidate to run for president," said Richardson, adding he was "disappointed" that 43 million Latinos would not "hear one of their own speak Spanish."

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The Teamsters' union and truckers in general have been protesting the recent change in U.S. policy that now (as of last Thursday) allows Mexican trucking companies to drive anywhere into the United States. Previously, the law required Mexican trucks to drive no farther than about 25 miles into Texas, and somewhat farther into Arizona. The change is a part of NAFTA, the North American Free Trade Agreement.

While there very well may be economic self-interests at play in these protests, the Teamsters say their primary concern is the safety aspect of allowing Mexican trucks onto U.S. highways.

The U.S. plans to grant permission to approximately 100 Mexican trucking companies by the end of 2007. This is part of a one-year pilot program intended to discover whether it would be safe to eventually allow all Mexican trucking companies into the United States.

Despite assurances from the U.S. government that all Mexican trucks will be inspected for drugs and for illegal immigrants, that the trucks will meet safety regulations, and that the drivers will be well-trained, there is considerable uncertainty among many Americans.

Because the main highway from Mexico into the U.S. runs through the Texas cities of Laredo, San Antonio, Austin, Waco, Dallas, and Fort Worth, we may find out fairly soon whether Texas drivers will be exposed to unusual dangers from the Mexican trucks.

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