Employers may need to dismiss undocumented employees who gave false documents and now want to come out in the open

The U.S. Immigration and Customs Enforcement (ICE) agency still is responsible for worksite enforcement and has not been told to “back down,” immigration Attorney Angelo Paparelli advises.

BY ED SILVERSTEIN DECEMBER 3, 2014



One veteran immigration attorney is advising businesses to dismiss employees who admit that they previously gave false information to land a job, even if they are giving honest records now, after President Obama issued a controversial new executive order.

Angelo Paparelli, who works at Seyfarth Shaw and was the founder and past president of the Alliance of Business Immigration Lawyers, warns that “employers must terminate if they become aware” of employees who gave false personally identifiable information that would prevent them from working legally in the United States.

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He points out that current law calls for such termination. In addition, the U.S. Immigration and Customs Enforcement (ICE) agency still is responsible for worksite enforcement and has not been told to “back down,” Paparelli said.

“These people will have to do their jobs,” Paparelli said in an interview with InsideCounsel. “Why would they back down? ICE doesn’t have the authority to override the statutory mandate.”

In addition, Obama – in his new executive order, which is expected to prevent the exportation of millions of illegal immigrants – did not say authorities should use prosecutorial discretion against employers. Nor did the president say the federal government will defer enforcement.

“I don’t think he will do; he’s gotten enough criticism,” Paparelli said.
Employers may even want to conduct voluntary internal audits on employees, which could be performed by outside counsel. Many government agencies will give credit for such internal investigations.

Yet, some other immigration attorneys are advising businesses to rely on their own internal policies on whether to fire or retain an employee who previously gave false information to an employer and is now coming out in the open.

“If an employee lied about the employee's status in the past to obtain employment through submittal of fraudulent documents but is now work authorized via the President's executive action, then the employer should apply whatever human resources policies that may exist that address honesty or submittal of fraudulent documents. It may be that the employee is now legal to work, but is subject to discipline or even termination for the employee's past actions that are now apparent,” according to a statement to InsideCounsel from Douglas B. Kauffman, a partner in Balch & Bingham’s Labor & Employment section.

He adds that if an employer terminated an employee after it was found the employee was not work-authorized and now the employee wants to be re-employed as a result of the employee’s new work authorization, “The employer is absolutely free to rehire such employee as long as the employee is able to establish that he or she is work authorized via submittal of the appropriate documents.”

Meanwhile, the U.S. Citizenship and Immigration Services agency is expected next month to release a memo to further explain the meaning of “specialized knowledge” as it applies to immigration and clarify L-1B visa standards. Also, non-citizens who have “exceptional ability” or hold certain advanced degrees will find that they will get clarified status and guidance from the USCIS. It will be used for the “national interest waiver.”

http://www.insidecounsel.com/2014/12...mploye?ref=nav