Aug. 4, 2010 – Immigration, once a topic ignored by everyone except those seeking to come to the United States or immigration practitioners, has now become an issue that no attorney can ignore.

As much as it has become a hot topic for news stories and blogs, recent enforcement efforts by the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) have made immigration issues even more of a consideration for attorneys who practice criminal, corporate, employment, and even family law.

Criminal law: Immigration consequences of criminal acts

Criminal arrests and convictions can have significant consequences for foreign nationals in both nonimmigrant classifications (including temporary students, visitors and workers) and legal permanent residents (also known as green card holders).

Many crimes, especially those considered “crime(s) involving moral turpitude” (CIMT), aggravated felonies, or crimes that “preclude a finding of good moral character” can render an individual “inadmissible” to the U.S. under the Immigration and Nationality Act (INA) § 212 or “deportable” from the U.S. under INA § 237.

Whether a crime is a CIMT is not determined by a statutory definition, but rather by judicial and administrative case law. Examples of crimes found to be CIMT include arson, assault with a deadly weapon, blackmail, bribery of a public official, burglary, battery to a spouse, embezzlement, making false representations, malicious destruction of property, prostitution, willful tax evasion, and sexual assaults.

Acts in which an individual was aiding and abetting in the commission of a crime deemed to involve moral turpitude also have been found to be a CIMT.

Unlike CIMT, Congress has designated certain offenses as aggravated felonies for immigration purposes. Under INA § 101(a)(43), the broadest categories of aggravated felonies include any crime of violence for which the term of imprisonment is at least one year; any crime of theft or burglary for which the term of imprisonment is at least one year; and illegal trafficking in drugs, firearms, or destructive devices.

For those green card holders seeking to naturalize, certain acts will “preclude a finding of good moral character” and can delay, if not eliminate, their chances of becoming a U.S. citizen. Examples include being convicted of an aggravated felony or CIMT, committing two or more offenses for which he or she was convicted and the aggregate sentence imposed was five years or more, and violating any law related to a controlled substance (but not including a single offense for simple possession of 30 grams or less of marijuana). Additionally, INA §101(f) acts as a catch-all provision allowing United States Citizenship and Immigration Services (USCIS) to consider a broad array of behaviors in making determinations of good moral character.

To complicate things further, the U.S. Supreme Court held in Padilla v. Kentucky, 559 U.S. ___ (2010) that attorneys now have a duty to inform their clients if a criminal conviction will result in removal (deportation).

Under Padilla, failure to inform clients could result in a Sixth Amendment claim for ineffective counsel. Now, more than ever, criminal attorneys must consider the immigration consequences for all those they represent that are not U.S. citizens.

Corporate law: Mergers and acquisitions

In our current global business environment, many companies employ foreign nationals and must be aware of the immigration consequences of mergers, acquisitions, or spinoffs.

Usually, temporary worker status is only valid when the particular individual remains employed by the sponsoring employer. For this reason, a change in employers due to a merger, acquisition, or spinoff could result in the instant expiration of an employee’s nonimmigrant status and unauthorized employment at the new business entity.

Both expiration of an employee’s nonimmigrant status and unauthorized employment at the new business entity can result in serious consequences for the employees and employer. It is virtually impossible to avoid this situation without due diligence and taking action before the final closing.  

Employment law: Eligibility and compliance

The Immigration Reform and Control Act of 1986 (Pub. L. 99-603, 100 Stat. 3359) requires that employers verify each employee’s eligibility to work in the United States at the time of hiring and reverify eligibility in specific situations.

This verification, and sometimes reverification, is accomplished by examining particular documents of the employee pertaining to identity and employment authorization

In years past, many employers have ignored the immigration status of their employees. However, recent ICE enforcement measures have made turning a blind eye no longer possible and certainly not advantageous to the employee or the employer.

In its newly released Strategic Plan, ICE states that one of the agency’s primary objectives is “creating a culture of compliance among employers” by “aggressive criminal and civil enforcement against employers who knowingly violate the law.”

Before the Obama Administration, ICE enforcement measures usually targeted unlawful workers with penalties for employers most often in the form of civil fines.

However, ICE’s new strategy, based on the belief that the old approach was perceived by employers merely as a cost of doing business, will focus enforcement measures on criminal prosecutions. Aggressive criminal and civil enforcement against employers will most certainly mean an escalation in employer audits and raids resulting in criminal arrests and fines, restitutions, and civil judgments for knowingly employing unauthorized workers, including incorrectly completing I-9 Forms (used for employment eligibility verification) or ignoring Social Security No-Match Letters.

To avoid liability, employers must have effective Immigration and I-9 Compliance Policies. The effective implementation of these policies can help prevent employer liability, including criminal and civil penalties for company owners, managers, supervisors and human resources (HR) employees. 

Family law: Marriage, divorce, emancipation, and adoption

Many immigration benefits are derived from familial relationships. All family-based immigration cases (that is, marriage to a U.S. citizen) are directly dependent on maintaining the underlying relationship throughout the course of the case and while the classification is being held.

In the employment-based immigrant and nonimmigrant classifications, many who are spouses or children of the primary applicant derive their classification solely based on a familial relationship. For these reasons, marriages, divorces, emancipations, and adoptions can have significant consequences and must be taken into account in these proceedings.

In conclusion, it is clear that immigration law is no longer a topic that can be ignored when advising clients. With Comprehensive Immigration Reform on the horizon, immigration law will continue to be a hot topic with increasing liability that must be addressed.

About the authors

Jerry Grzeca, a graduate of Marquette University Law School, is founder and managing partner of the Grzeca Law Group S.C., Milwaukee, a full-service immigration firm. Grzeca has been a member of the American Immigration Lawyers Association (AILA) for more than 20 years and currently serves as Director of the Board of Governors for AILA. Grzeca is a renowned speaker and author of a variety of topics relating to business immigration law, and has served on more than 30 professional panels, webinars, and round-table discussions for businesses needing expertise in immigration matters.

R. Oliver Branch, a graduate of the University of Richmond School of Law in Virginia, is an associate attorney for Grzeca Law Group, S.C. Branch is also a member of the American Immigration Lawyers Association (AILA).

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