We are in a new era of broadened immigration enforcement. President Donald Trump is carrying out his campaign promise to target illegal immigration to the United States. In addition to increased enforcement at our borders, enforcement efforts within the United States have a new focus. Whereas the Obama Administration geared its “interior enforcement strategy” to the removal of high-risk criminal aliens, the Trump Administration has shifted to the pursuit of deportation and removal of all persons who have violated our immigration laws, even those with minor immigration violations.
Applicants in legal immigration processes are being scrutinized. Certain longstanding government programs are ending. For example hundreds of thousands of persons from Guatemala, El Salvador, Honduras, Haiti and Nicaragua who have been work authorized for decades through the Temporary Protected Status (“TPS”) program, now face the termination of that program’s designation for their home country in the next several years (except that as of October 4th, 2018, a preliminary injunction in the U.S. District Court in California has been issued stopping the U.S. Department of Homeland Security from terminating TPS for immigrants from Haiti, Nicaragua, El Salvador, and Sudan; however, the termination of this program still remains uncertain). Foreign nationals affected by these changes may comprise loyal members of your domestic household staff.
What these changes mean for you and your domestic household employees
Even if you are confident that all foreign nationals working as house staff have legal status, as a prudent employer, it is important to ensure that your house staff’s employment eligibility is well documented and that all employment law and tax obligations are being fulfilled. If you are like many of our client employers, you have a long relationship with your house staff. They may consider you a trusted advisor. Based upon the most common questions we receive from employers regarding foreign national domestic household help, here are the five things you need to know regarding the hiring, documenting, and immigration sponsorship of household help in the New Era of Broadened Immigration Enforcement.
- Do I need to verify and document the employment eligibility of my house staff?
It is a common misconception that immigration, tax and labor and employment laws can be ignored when it comes to domestic household employees working out of one’s home. Yet U.S. immigration laws require documenting an employee’s legal status and provide penalties for knowingly employing persons who are not authorized to work in the United States. Generally, all employers must verify the identity and employment authorization for every person they hire, including U.S. citizens, and document such verification on Employment Eligibility Verification Form I-9. Completion of a Form I-9 is generally required for a domestic household employee who performs child care, household tasks, and/or upkeep of a home or surrounding yard, or similar services on a regular basis in return for wages or other benefits. However, you would not be required to complete a Form I-9 for a domestic worker if the domestic worker is providing services as an independent contractor or such services are sporadic, meaning they occur occasionally, singly or in random instances; irregular, meaning the occurrence or activity lacks continuity or regularity; or intermittent, meaning they do not occur continuously but instead come and go at intervals. Independent contractors include individuals or entities that carry on independent business, contract to do a project according to their own means and methods, and are subject to control only as to the results of the work and not how it will be done. Many factors are considered when determining whether or not an individual or entity is an independent contractor. Regardless of who completes the Form I-9, employers or persons using contract services must not employ or use the services of a domestic worker knowing that person is not authorized to work in the U.S. The government’s stated “best practices” with respect to the Form I-9 employment eligibility verification process include annual training for each person who prepares an I-9 form and regular internal audits of Forms I-9.
Takeaway: Whether you have I-9 Forms for all members of your house staff, or you do not, enlist assistance from immigration counsel now to review your records, provide training to your house staff management and assist them with an internal audit of Forms I-9.
- My foreign national domestic household employee has asked me to sponsor them for a “Green Card”. What’s involved?
Your foreign national household domestic employee whose TPS status may soon be ending, or who is worried about their immigration issues, may request that you “sponsor them” for permanent residence to obtain a “Green Card”. If this occurs, a detailed discussion of what is involved with immigration counsel who regularly handles such matters is warranted. While in some situations this is a feasible strategy, there are many myths regarding this process. For example 1) It will provide the employee a quick and seamless route to legal status; 2) It causes no risks to the employer or foreign national employee; and 3) It will provide an overarching solution to the foreign national’s household employee’s immigration problem. In fact, the process is lengthy, and generally takes a number of years, during which time the foreign national employee does not immediately benefit with a grant of legal status. From the employer’s standpoint, it involves a good faith recruitment effort to advertise the position and show no interested, available or qualified workers applied. Information regarding the employee’s employment history is required on the application signed by both the employer and employee. Even if the sponsorship is approved, the employee’s past immigration violations, such as a previous deportation order, may complicate the process. Finally, there are often other solutions, such as sponsorship by a U.S. citizen immediate family member, which provide a more straightforward path to legal status for the foreign national employee.
Takeaway: Rather than immediately agree to “sponsor” the employee, explore the ramifications for you and your employee with employment-based immigration counsel, and make sure all available strategies have been considered.
- How can I make sure my employee gets good legal advice? Am I at risk if I help them?
Like many other areas of law, Immigration law has many subspecialties, including “employment-based,” “family-based,” “deportation/removal defense,” and “political asylum,” among others. While in an employment-based case, using one lawyer to represent the employer and the employee is customary. If your employee needs another type of immigration attorney for his or her individual case, in order to preserve the attorney-client privilege and confidentiality, it is generally a better practice for the foreign national employee to have separate counsel. However, if you desire that your immigration counsel stay involved, a good solution to protect everyone is to enter into a “Common Interest Agreement” where the employer and the employee agree to mutually share information within the parameters of attorney-client privilege.
Takeaway: If you are considering assisting a foreign national household employee with their immigration processes, consult an immigration attorney who customarily represents employers. This immigration attorney can advise you regarding the risks of sponsorship and can assist you to make sure your Form I-9 documentation is in order. If other strategies should be pursued for the type of immigration lawyer your foreign national domestic employee needs, reputable and qualified immigration counsel in the appropriate subspecialty can be identified. A “Common Interest Agreement” can be utilized so that your attorney can monitor the matter while still protecting confidential information between your employee and counsel.
- Am I at risk criminally if I help an undocumented worker?
The provisions of the Federal Criminal Statute entitled “Bringing in and Harboring Certain Aliens” (“the Harboring Statute”) are among those which might apply in the case of a domestic household employee who is not authorized to work. It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any alien who is in the U.S. in violation of law. Key aspects of the Harboring Statute include:
- The prohibition against harboring applies to anyone.
- Interpretations of Harboring proscribe a very broad range of
- engagement activities with regard to interactions with illegal aliens.
- Harboring can include:
- Providing shelter;
- Instructing illegal aliens on how to avoid arrest and detection; and
- Conduct that impedes a government investigation.
Although mere employment of an illegal alien appears to fall within the ambit of the harboring statute, most courts seem to require affirmative conduct beyond such employment. There are substantial potential criminal penalties for conviction of harboring including imprisonment, fine, and forfeiture of property.
Takeaway: In today’s climate of increased enforcement activity with regard to persons unlawfully in the U.S., it is prudent for individuals utilizing the services of a domestic household employee to review the circumstances of their particular situations in the context of the employment eligibility verification requirements. It is also reasonable to expect that the prosecution of harboring cases will continue and that prosecutors will argue for the broadest possible ambit of the statute.
- What should my employee do if Immigration and Customs Enforcement (ICE) comes to their home looking for someone in their household? What arrangements should be made for U.S. citizen children if a parent gets taken into custody or deported?
The best course of action is for the foreign national who is at risk to be prepared in advance. There are numerous resources currently available through public interest groups that represent and provide information to immigrants. The American Immigration Lawyers Association has compiled helpful “Know your rights” fact sheets in multiple languages to inform foreign nationals of their rights if ICE comes to their home, stops them in public or comes to their workplace. These fact sheets explain in detail that all persons living in the United States, even undocumented immigrants, have certain constitutional rights and discuss what to do if questioned by an ICE agent, explain the right to remain silent, and advise that if the foreign national is detained or taken into custody, they have the right to contact a lawyer. Immigrants’ rights groups also often provide counsel and forms that can be signed in advance to authorize a third party, such as a friend or relative to care for children in an emergency situation.
Takeaway: The foreign national domestic employee will benefit from access to available resources to become better informed regarding their options and risks, and to explore legal options to authorize friends or relatives to care for their children in the event they are separated from them in an immigration emergency.