Copland and Brenner

Table of Contents

1. Special Immigrant Religious Worker Law Extended
2. DV-2005 Filing Period Begins
3. BCIS Morphs Into USCIS, With Web Portal Reflecting Change
4. “Operation Rollback” Targets Wal-Mart Cleaning Services

1. Special Immigrant Religious Worker Law Extended

   On October 15, 2003, President Bush signed into law H.R. 2152, which extends until September 30, 2008 the special immigrant religious worker classification for qualifying workers in religious professions and occupations. As we reported in August, the law in question, Section 101(a)(27)(C)(ii) of the Immigration and Nationality Act, included a sunset provision such that it otherwise would have expired on September 30 of this year. The bill to extend the law was introduced by Representative Barney Frank (D-MA) on May 19, 2003.

2. DV-2005 Filing Period Begins

   With November upon us, we remind readers that the filing period for the Diversity Visa Lottery Program for 2005 (“DV-2005”) has begun. Under DV-2005, applications must be submitted electronically between Saturday, November 1, 2003 and Tuesday, December 30, 2003. For the first time, paper entries will not be accepted. The Electronic Diversity Visa Entry Form (“EDV Entry Form”) for DV-2005 may be accessed at the U.S. Department of State web site (www.dvlottery.state.gov) during the 60-day registration period. Since a number of requirements have changed significantly over past years, all applicants are strongly advised that failure to full comply will result in disqualification. State Department instructions for DV-2005 may be found on its web site at http://www.travel.state.gov/dv2005.html.

3. BCIS Morphs Into USCIS, With Web Portal Reflecting Change

   About two months ago, the American Immigration Lawyers Association was notified that the Department of Homeland Security was dropping the “Bureau” from the names of its immigration-related entities and substituting “U.S.” Thus, the former Bureaus for Citizenship and Immigration Services (BCIS) becomes USCIS; the Bureau of Immigration and Customs Enforcement (BICE) becomes USICE, and the Bureau of Customs and Border Protection (BCBP) becomes USCBP.

   The web site for USCIS may now be located by directing your browser to www.uscis.gov. The Uniform Resource Locators (commonly known as URL’s) for the enforcement agencies have not yet changed.

4. “Operation Rollback” Targets Wal-Mart Cleaning Services

   On October 23, 2003, U.S. Immigration and Customs Enforcement (“USICE”) announced that its officers had “arrested hundreds of illegal aliens at Wal-Mart stores in more than 20 states as part of an ongoing investigation into the illegal employment of unauthorized workers in this country.” The sweep was widely reported as involving 250 – 300 aliens at 60 stores in 21 states, including New York. Documents were also reportedly taken from the office of a Wal-Mart executive at the company’s headquarters in Bentonville, Arkansas.

   Various reports indicate that the illegal aliens were not direct Wal-Mart employees, but were instead employees of outside companies with which Wal-Mart had cleaning contracts for some of its stores. The aliens came from 18 countries, most or all of them from Eastern Europe. All were arrested for immigration violations, and those with criminal records were detained. All face removal proceedings before U.S. Immigration Courts.

   One Man’s Story

   In a November 5 New York Times article, “Pavel,” a native of the Czech Republic, recounts his journey to the U.S.A. earlier this year – ostensibly as a tourist. In reality, Pavel was traveling to the U.S.A. after he “responded to an intriguing Web site that boasted of cleaning jobs in the United States paying four times what he was earning as a restaurant manager.” He flew to New York and then “took a bus to Lynchburg, VA., where a subcontractor delivered him to a giant Wal-Mart.” Once there, Pavel “immediately began on the midnight shift and said he soon learned that he would never receive a night off.” He said that he earned $380 – in cash – in exchange for the 56 hours he worked each week, coming to $6.79 per hour. He was not paid the time-and-one-half pay required for overtime.

   According to the article, janitors like Pavel worked seven nights each week, for eight months, without overtime pay and often under harsh conditions. One former contractor described a scheme under which Wal-Mart paid contractors $10 per hour per worker, subcontractors were paid $8 per hour, and workers were paid a lesser amount – perhaps $7 – 8.00. The article cites such arrangements as appearing “to benefit Wal-Mart, its shareholders and managers by minimizing the company’s costs, and it benefited consumers by helping hold down Wal-Mart’s prices. Cleaning contractors profited, and thousands of foreign workers were able to earn more than they could back home.”

   The Company and its Response

   On its web site, Wal-Mart states that it has 1,489 Wal-Mart stores; 1,397 Supercenters, 532 Sam’s Clubs and 56 Neighborhood Markets. It employs more than one million people in the U.S.A. and had sales for its last fiscal year of $244.5 billion. The company’s web site, however, contains no reference to its travails involving undocumented workers.

   The November 5 New York Times article, as well as other media sources, cite prior difficulties faced by Wal-Mart cleaning contractors in 1998 and 2001for the premise that the company had to know of the more recent violations. In those previous enforcement efforts, “102 illegal immigrant janitors at Wal-Marts,” working for “13 Wal-Mart cleaning subcontractors pleaded guilty to illegal hiring practices.”

   Through spokeswoman Mona Williams, Wal-Mart has pledged its cooperation following the raids, but asserts that it requires third-party contractors “to use only legal workers.” (www.foxnews.com) Various media have reported, however, that the “workers were knowingly contracted through an independent company” (www.MSNBC.com), that “federal law enforcement officials who spoke to the Associate Press on condition of anonymity say Wal-Mart knew of the violations” and “cited recordings of meetings and conversations among Wal-Mart executives, managers and contractors,” and that “Wal-Mart had direct knowledge of the immigration violations.” (Associated Press)

   Following the early reports that came on the heels of the raids, the news only got worse for Wal-Mart. On November 4, the Associated Press reported that Wal-Mart “had received a ‘target letter’ from the U.S. Attorney’s Office saying the world’s largest retailer allegedly violated federal immigration laws.” Such a letter means that a “grand jury will look at whether the company ‘violated federal immigration laws in connection with the use of third-party cleaning contractors.’” The article goes on to say that “[t]en of those arrested were Wal-Mart employees hired as the company moved to bring its floor cleaning in-house.”

   In this context, several recent articles note that most Wal-Mart stores are cleaned by direct employees but estimate that between 700 - 1,000 stores are cleaned by contractors. This may suggest that there were company efforts to eliminate the “middleman” – the contractors and subcontractors, with the company ultimately paying a lower hourly rate for cleaning of its stores. Company savings could be substantial given the $10 hourly rate paid contractors against the $7 – 8.00 (or less) per hour allegedly paid to many of the contract workers.

   The Law that Bars

   Unauthorized Employment

   In 1986, the Immigration Reform and Control Act for the first time imposed upon employers penalties for the unauthorized employment of aliens. The notion behind the law was that employers subject to penalties for employing unauthorized aliens would hire only persons who have permission to work in the U.S.A. In turn, this would stem the tide of illegal immigration because employers would seek to avoid the risks involved. The law, however, has been anything but a success.

   Generally, Section 274A of the Immigration and Nationality Act, “Unlawful Employment of Aliens” prohibits:

   1 – the hiring, recruitment or referral for a fee of an alien, knowing the alien is an unauthorized alien with respect to employment in the U.S.A.

   2 – the hiring of any person – regardless of U.S. status - without complying with the statutory employment verification system

   3 – continuing to employ any alien knowing the alien is, or has become, unauthorized with respect to employment in the U.S.A.

   Given the above parameters, the peril of Wal-Mart’s situation is not apparent. However, Section 274A(a)(4) of the statute contains a provision concerning “use of labor through contract,” which reads as follows: “a person or other entity who uses a contract, subcontract, or exchange, entered into, renegotiated, or extended…to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien…with respect to performing such labor shall be considered to have hired the alien….” (emphasis added)

   Employer Compliance

   The mechanism an employer must use to ascertain whether any new hire is authorized for U.S. employment is the employment verification system referred to above, involving completion of Form I-9. Any new employee – even a U.S. citizen – is required to complete Section 1 of Form I-9 no later than the close of business on the first day of employment. Thereafter, the employer must review the documentation presented by the employee, record the document information on Section 2 of Form I-9, and ensure completion of the entire form no later than the close of business on the third day of employment. The documentation provided by the employee must establish both identity and work authorization in the U.S.A.

   Since INA Section 274A was enacted, enforcement activities and fine-tuning to the law have taken place in fits and starts. Thanks to a “good faith” exemption added to the statute by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, certain employers may have a defense to allegations under INA Section 274A. Pursuant to this amendment, even if an employer’s documentation reflects a technical or procedural failure, compliance may be found if there was a good faith attempt to comply by reviewing each employee’s documents presented and completing Form I-9 for each employee. However, there are two exceptions to this exemption: first, in cases where enforcement officers have explained the reason for the failure and the employer fails to correct it within ten days. The second involves cases where the employer “has or is engaging in a pattern or practice of violations.” Based upon reports to date, it does not appear that Wal-Mart is a candidate for defending itself under the “good faith” exemption.

   Currently, the stated position on the USCIS web site is that only Form I-9 bearing the revision date of 11/21/91 is authorized for use, and that interim regulatory changes made on September 30, 1997 are in effect. Subsequent proposed changes and an updated Form I-9 published in February 1998 should not be used. The required forms, frequently asked questions, the Handbook for Employers and many other useful materials can be found at www.uscis.govand clicking on the link for “Employer Information.”

   Conclusion

   We emphasize that media reports regarding Wal-Mart’s current travails involve unproven allegations. In addition, even if true, the problem of unauthorized employment is hardly limited to a single company. However, if it is established that Wal-Mart knew of the violations, the company may be subject to severe penalties even if the cleaners were not direct Wal-Mart employees. If so, instead of the cleaners going to Wal-Mart, it may be the government’s turn to take Wal-Mart to the cleaners.