A client recently inquired of C-G concerning language it proposed for a lease making the lease terminable were the tenants later found to have violated the immigration laws. Because of the anti-discrimination provisions promulgated pursuant to the 1986 Immigration Reform and Control Act, we did not think such a termination provision was advisable. Nevertheless, the situation highlighted a potential problem confronted by landlords who lease to persons whom they suspect may be undocumented, i.e. could the landlord become subject to prosecution on the basis of “harboring” illegal aliens?  Unfortunately, as it happened, the question has not been just theoretical, but in certain jurisdictions has been played out. Today, the American Immigration Lawyers’ Association posted on its website a very telling article about such a criminal prosecution of a landlord, which happily resulted in his being cleared of all charges, but which underscores the more threatening enforcement environment we are in. The article is set forth in full, as follows:   

Cite as “AILA InfoNet Doc. No. 08070968 (posted Jul. 9, 2008)”

On 06/27/08, William Jerry Hadden, a Kentucky landlord who faced 62 charges in US District Court of renting apartments without verifying the immigration status of the future tenants, was found not guilty on all charges.

The trial is thought to be the first time the federal government has prosecuted a landlord for renting to undocumented immigrants, defense attorneys said in court filings.

Hadden’s defense attorneys steadfastly maintained his innocence and claimed that the federal government was twisting the intent of harboring laws, which they say were intended to target human traffickers or employers who are trying to hide their work forces. They further noted that it is not illegal to rent to undocumented immigrants, and Hadden therefore had no legal obligation to check any tenant’s immigration status.

The court agreed with the defense and ruled that there had to be evidence that the defendant intended to violate the immigration laws by concealing or hiding tenants.

For businesses involved in the manufacture and sale of dual use technologies, i.e. technology that can have a military as well as a commercial use, bringing a foreign national  into the U.S., even as a business visitor, can become problematic, not because of any particular immigration law per se, but on account of Export Control Laws promulgated by the U.S. Department of Commerce and other U.S. Agencies.

Of particular significance to the immigration practitioner is the, so called, “deemed export rule”  and the existence of a Technology Alert List, which is a list of particular dual use technologies that the U.S. government is especially sensitive about. As provided under the Export Administration Regulations (EAR) an export, contrary to popular belief, does not necessarily require sending physical products outside of the U.S., but can also involve disclosing information about a technology to a foreign national while he or she is in the U.S. In the parlance of the U.S. Department of Commerce’s Bureau of Industry and Security, such a disclosure of information is, in fact,”deemed” an export event, which could make it necessary for the foreign employer to obtain an export license.  

The upshot of the “deemed export rule,” as far as immigration is concerned, is that there is a heightened risk of a violation of the rule when an alien enters the U.S. for the purpose of visiting a company in an industry that falls within the purview the Technology Alert List. Such an alien could unwittingly become the subject of an extensive security review called a Visa Mantis Security Check, which can involve the U.S. Department of State’s soliciting the views of upwards of a dozen agencies regarding the  background and bonafides of the foreign national before issuing a visa. In many cases, such reviews have taken anywhere from three to six months to complete and can result in the imposition of severe restrictions on what the foreign national can actually do in the U.S. 

For businesses involved in fields involving technologies that can potentially have military uses,  it is important to take proactive steps, even when trying to bring in a foreign national technologist as a business visitor, to arm the alien with a documentary presentation that details what the foreign national’s background is and what he or she will be doing in the U.S. According to one commentator, the foreign national may need, among other things, (1) a letter from the employer detailing its work and whether and to what extent the alien would be exposed to technical know-how; (2) documentation showing that the technology at issue is not protected and is in the public domain, (3) the resume of the foreign national and recommendation letters from U.S. sources; and (4) documentation from the Department of Commerce showing that the technology at issue is not subject to an export license. 

What is also important for businesses that operate in sensitive industries to understand  is that not only can a foreign national employee or consultant be denied a visa, but that the authorities in reviewing the immigration status of an individual alien via a Visa Mantis Security Check, may also initiate an inquiry into a host-company’s possible, previous violations of the nation’s export control laws. Like with employer sanctions in the immigration context, violations of U.S. export control laws can expose a business to significant civil and even criminal penalties. ¼/p>

For employers who have been approached by graduates with STEM degrees (i.e. degrees in Science, Technology, Engineering or Mathematics) for employment on the basis of a recent extention of their optional practical training from 12 to 27 months, the question of what E-verification is and whether to get involved in the program is an issue that has come into focus. E-Verify, formerly a pilot program, has recently undergone technological enhancement and is currently mandatory in certain states and under certain circumstances, i.e. such as when participation in the program is a conditon to entering into a government contract. Essentially, E-Verify provides a database system that allows employers to cross-reference identity information with Social Security Administration records confirming work eligibility.   Employers can register to participate in the E-Verify program via the Department of Homeland Security’s website. As part of the registration process, employers are obliged to  enter into a Memorandum of Understanding with the Government regarding the employer’s reponsibilites and duties under the program. Whether or not an employer should participate in E-Verify depends on its specific circumstances.  However, employers should know that participation is not a substitute for the I-9 requirement, which requires all U.S. employers to fill out and maintain I-9 forms for each newly hired employee. Participating in E-Verify also does not afford the employer immunity from enforcement of the immigration laws.  Obviously, for employers dependant on government contracts and/or doing business in states like Arizona, which make participating in E-Verify mandatory, there is little choice in the matter. However,  for employers with a choice, critics point out that participating in E-Verify can, in the short-run, raise administrative costs because to comply with the program the employer must use E-Verify to evaluate the work eligibility of every new hire, which  may require a central database manned by well-trained staff. Among other things, critics also point out that the Memorandum of Understanding that employers are required to execute as part of the program contains language which strongly indicates that an employer may subject intself to increased scrutiny by immigration enforcement authorities, including requests by such authorities for compliance documents relevant to the employer’s participation  in the E-Verify program. Finally, although the database capabilities of E-Verify have supposedly improved, there is still concern the that upwards of 8% of all E-Verify requests will yield false negatives. According to certain commentators, there could be especially significant problems processing individuals who are J, F (OPT), H, TN and TPS status holders or persons authorized to work in the U.S. under the terms of special programs.  For this reason, employers who employ or plan to employ non-immigrant workers may well find participating in E-Verify a time consuming and frustrating process.

We expect that in the future, employers will hear more about E-Verify as the U.S. Government and state governments increasingly emphasize the need to halt undocumented labor through implementing employment eligibility enforcement measures. Although there are virtues to a more technology driven system for ascertaining employment eligibility, there would be significant growing pains and, at least initially, materially higher costs. Moreover, the E-Verify program doubtless will impose increased administrative burdens on and heighten risks for American employers, who are already expected to shoulder many of the responsibilities attending the nation’s broken immigration system.    

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