Director of Immigration and Customs Enforcement (ICE), John Morton, recently issued a Memo outlining guidance to ICE agents and attorneys on exercising prosecutorial discretion. Specifically, he stated that ICE personnel may exercise prosecutorial discretion based on certain factors, including how long an individual has been in the U.S., what the individual’s status has been during his/her time in the U.S., circumstances regarding the person’s arrival and stay in the U.S., the individual’s education while in the U.S., the individual’s family ties to those with lawful status in the U.S., the individual’s immigration history, the individual’s criminal history, and the Agency’s immigration enforcement priorities, among other factors. Director Morton also clearly stated that no individual has a right to prosecutorial discretion.
Immigration and Customs Enforcement (ICE) announced June 15, 2011 that it will audit 1,000 new companies nationwide. This continues the government’s trend to use the I-9 audit process to check on employers’ compliance with employment eligibility verification requirements and impose costly penalties. For more information, see http://money.cnn.com/2011/06/15/news/economy/immigration_ice_audits/index.htm?iid=H_SB_News
If your company has received an ICE I-9 Notice of Inspection, contact Stern & Curray for an experienced response. If your company has not yet been the target of an ICE audit, contact Stern & Curray for a proactive review of your I-9 compliance strategies.
The U.S. government has unveiled a new initiative to combat the unauthorized practice of immigration law (UPIL). The unauthorized practice of immigration law occurs when a person gives legal advice who is not an attorney or accredited representative. The Department of Homeland Security (DHS), the Department of Justice (DOJ) and the Federal Trade Commission (FTC) will be working together on this new initiative. The new government initiative will focus on enforcement, collaboration and education to combat UPIL. To increase enforcement, DOJ will dedicate more resources to the investigation and prosecution of UPIL cases and increase their collaborative efforts by working with the FBI, ICE, USCIS and state and local agencies.
The system for reporting instances of UPIL has also been improved. The Federal Trade Commission has made it easier to report incidents of fraudulent immigration practice or immigration scams. Victims of immigration fraud can call the FTC hotline to report instances of UPIL. To file a complaint in English or Spanish visit the FTCs online complaint assistance (www.ftccomplaintassistant.gov) or call 1-877-FTC-HELP (382-4357). The FTC database, the consumer sentinel network, is shared with more than 2,000 law enforcements agencies and also with ICE, DOJ and USCIS. Prosecutors and investigators will use these complaints to investigate instances of UPIL.
To increase education regarding immigration law, USCIS has designed a new brochure, a poster, a public service announcements and a new web resource center. These efforts are aimed at providing better education to the immigrant community regarding the unauthorized practice of immigration law and where to go for legal advice. For more information about the USCIS education initiative program, visit www.uscis.gov/avoidscams.
Education about UPIL will also be improved by making the public more aware of the Executive Office of Immigration Review (EOIR) recognition and accreditation program. While non-lawyers are allowed to practice immigration law, they are only permitted to do so if recognized and accredited by EOIR. EOIR accreditation signifies that an organization and designated members are qualified and able to provide immigration advice and services. The government plans to increase the use of the accreditation program so that immigrants are able to more easily identify whether or not an organization is properly qualified to provide immigration services. For more information on the EOIRs recognition and accreditation program, please visit the DOJ website www.justice.gov/eoir/statspub/raroster.htm.
On May 26, 2011, the U.S. Supreme Court upheld the Legal Arizona Workers Act of 2007 which requires all Arizona employers to use E-Verify and takes away the business licenses of companies that knowingly hire illegal immigrants. Chamber of Commerce v. Whiting (U.S. May 26, 2011). The majority opinion found the state law is not preempted by federal immigration law. This recent decision did not address Arizona’s SB 1070, the more high-profile Arizona immigration law which requires police to check the immigration status of individuals in certain circumstances.
Supporters of the Arizona bills plan to use this decision as a victory to call for even more employer sanctions laws in other states and at the federal level. Meanwhile opponents, including the American Immigration Lawyers Association, continue to call for immigration reform at the federal level.