We have all seen it on television: crowds of immigrants protesting current immigration laws. These days, in New Jersey, as in most coastal states, as well as states that border Mexico, immigration is a very real issue for many of us. Even if our families can point to several generations of U.S. citizenship, immigration affects our daily life.
Every one of us knows someone who was born in another country. Are they here in the United States legally? Do they have the proper visas to allow them work? We never ask these questions of our friends and neighbors. And often we try not to ask them of employees, either. In fact, just asking that question in a job interview can hold an employer liable to a discrimination lawsuit, says Ryan Stark Lilienthal, an attorney with offices at 206 Nassau Street who focuses on immigration law.
The “crazy tightrope” of immigration rules and regulations means that, on the one hand, an employer can be sued for asking the wrong questions about immigration status. On the other hand, if he hires an illegal immigrant, he may be subject to legal penalties.
Lilienthal discusses “Immigration Law Opportunities and Obstacles: What You Should Know When Employing Immigrants” at a seminar sponsored by the Mercer Regional Chamber of Commerce on Thursday, June 29, at 8 a.m. at the chamber’s new office at 1A Quakerbridge Plaza Drive, Mercerville. Cost: $30. Call 609-689-9960 to register or for more information.
Different types of status. “There are several different types of status,” explains Lilienthal. A person’s status can range from undocumented, or people who have either entered the country illegally or have overstayed their legal visa, on one extreme, to U.S. citizens with full status, on the other.
In between, he says, are different levels of visas. Immigrants can hold an H-1B visa, for professional workers or an H-2B visa, for seasonal workers, such as agricultural workers, landscapers, and people who are employed in the tourist industry.
Another level is permanent residents, or people who are listed as refugees or seeking political asylum. Permanent resident visas are also often called “green cards,” even though the cards are no longer green. Permanent residents have rights that are “one step down from U.S. citizens,” say Lilienthal. While they cannot vote, they can work and have all of the other benefits of U.S. citizens.
Opportunities and challenges. The complex immigration laws offer both opportunities and challenges for employers, says Lilienthal. While employers are required to verify that the people they employ are in the country legally, they must be careful how they ask about employment status. “I suggest they ask for an I-9 (a federal government form that verifies a person’s authorization to work),” he says.
Asking for other documents, such as a passport, a “green card” or other proof of immigration status can leave the employer open to changes of discrimination.
According to information put out by the Department of Homeland Security, U.S. Citizenship and Immigration Services, “It is illegal to discriminate against any individual (other than an alien not authorized to work in the U.S.) in hiring, discharging, recruiting, or referring for a fee because of that individual’s national origin or citizenship status.”
This means, says Lilienthal, that an employer cannot “decide to hire only U.S. citizens.” The issue can get particularly sensitive if an employer receives a “no match” notification from Social Security. This is a letter advising the employer that the Social Security number for a particular employee either does not exist or does not match the name the employer has with the number.
“You cannot just fire someone because you get a no match letter,” says Lilienthal. “There may be any number of legitimate reasons for it.” It may be a simple clerical error, or a person may have gotten married and forgotten to notify Social Security about her new married name.
New regulations. The government is currently in the process of producing new regulations and requirements on how an employer should respond to a no match letter, says Lilienthal. While it is unclear exactly what these new regulations will demand of the employer, they will require a good faith effort to clear up the no match problem. But as things stand now, employers walk a fine line between anti-discrimination laws and immigration regulations.
Contradictory legislation. Currently both the U.S. House and U.S. Senate have proposals on the floor to help deal with immigration issues. Something must be done, says Lilienthal, because there are 11 to 12 million illegal immigrants are living in this country.
The two proposals take opposite views in dealing with the issue, however. The Senate proposal, which Lilienthal favors, provides a vehicle for many immigrants to legalize their status, as well as for employers to “hire people in the right way.” The House bill, on the other hand, takes what Lilienthal sees as a “mean spirited” attitude toward immigration. It would make not only the immigrants who have entered the country without a visa a criminal, but anyone who “tries to give them assistance would also become a criminal,” he says. This includes lawyers who work to gain legal status for immigrants as well as employers. “Even a volunteer in a woman’s shelter who helped a woman who is not a legal resident would become a criminal” under the House bill, he says.
These criminal liabilities don’t exist now, but the situation for immigrants — and for those who need their labor — still presents serious dilemmas. There is now no way for employers in many professions to legally hire someone from another country, says Lilienthal. This is so because work visas are not available for people in many trades, including the food service industry and most areas of the construction industry.
“There are no visas available, so often employers are forced to hire people who are not legal,” says Lilienthal.
There are visas available for seasonal workers, but there are not nearly enough of them. There are two types of visas for seasonal workers: H-2A, for agricultural workers, and H-2B, for other types of workers. In theory these visas allow an employer to bring someone into the United States for a variety of jobs from agriculture to landscaping to jobs in tourist industries. The problem, says Lilienthal, is the number of these visas available.
“There are only 66,000 H-2A visas for the entire country and 65,000 H-2B visas,” he says. “I’m not sure that is enough for New Jersey, let alone the whole country, especially when you consider that 25 percent of our agricultural workers are immigrants.”
Lilienthal says his interest in immigration law stems from his own family background. “All four of my grandparents fled Nazi Germany for this country, and I had a number of relations who were killed in Germany during that time. That is my backdrop to life in the United States.”
After receiving a B.A. from Tufts University, Lilienthal worked as an immigration policy lobbyist in Washington D.C., dealing with Haitian boat people in the 1990s as well as Somali and Rawandan refugees. He received his law degree from Brooklyn Law School and prior to working in private practice he litigated immigration cases involving Constitutional issues through a fellowship at the American Civil Liberties Union, and also received a fellowship to work with asylum applicants at the New York Association for New Americans.
In his current practice he works for both immigrants and their employers. In a few of the cases the immigrant qualifies to apply for permanent resident status immediately, however, those cases are very few. “The vast majority of people don’t have that opportunity,” he says. “They are waiting for the laws to change.”
An employer can begin the sponsorship process for an employee who does not have the appropriate papers. However, for both employer and employee, it is a gamble. This is so because just getting the process going means providing information to the government that the person is in the country illegally — and that the employer has hired him.
It has become clear that many of our immigration laws will change in the next few years. Lilienthal and his clients are eagerly awaiting the results of these changes to see if they can get off the tightrope of questionable legal status — or questionable hiring practices.