Hawaii Court Enjoins Trump Travel Ban For Excluding Non-Immediate Family Members of US Persons and DHS-Approved Refugees

In June the Supreme Court enforced temporarily President Trump’s travel ban to the extent it excludes persons without a “bona fide relationship” to a person or entity in the U.S. The Court expressly identified wives and mothers-in-law as persons who have a bona fide family relationship to a person in the U.S.  Following the Court’s decision, the Trump administration interpreted “bona fide relationship” narrowly, to include only fiancés, spouses, children, parents and siblings of the U.S. person. On July 13 a federal judge in Hawaii loosened the travel ban by entering a nationwide injunction that orders the Trump administration to exempt from the ban grandparents, grandchildren, aunts, uncles, brothers-in-law, sisters-in-law, nieces, nephews, and cousins of persons in the U.S. U.S. District Judge Derrick Watson criticized the Administration’s narrow definition of bona fide family relationship as “the antithesis of common sense,” which “dictates that close family members be defined to include grandparents.”

Additionally, Judge Watson enjoined enforcement of the ban to the extent it excludes from entry refugees who have formal assurance from a U.S. resettlement agency. Judge Watson reasoned that such assurance “meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades…Bona fide does not get any more bona fide than that.”

Immediately, the Justice Department appealed Judge Watson’s ruling to the Ninth Circuit and simultaneously filed motion papers with the Supreme Court requesting clarification. In its motion, the Justice Department argues that Judge Watson’s interpretation of the travel ban “empties the Court’s decision of meaning,” because it includes “not just ‘close’ family members, but virtually all family members…Treating all of these relationships as ‘close familial relationship[s]’ reads the term ‘close’ out of the Court’s decision.” The Justice Department asked the Court to stay the effective date of the Hawaii court’s order until the Court resolved the motion to clarify the Court’s June ruling. The Justice Department’s motion, which remains pending, may be viewed here.

If you would like to discuss the implications of the travel ban and the various court decisions affecting the ban for your employees, your hiring plans, and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Immigration Law Practice at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

Immigration Law Violations Occurring After November 2, 2015 Carry Heavier Penalties

Effective August 1, 2016 the Department of Justice is assessing higher penalties for employers that violate immigration laws. These penalties cover violations that occurred after November 2, 2015.  Specifically, the DOJ’s interim final rule increases penalties for a myriad of violations, including penalties for employing unauthorized workers and for technical Form I-9 paperwork violations. These increases are driven by the Civil Monetary Penalties Inflation Adjustment Final Rule which directs federal agencies periodically to increase their administrative penalties to account for inflation. With this increase, the minimum penalty for unlawfully employing a single unauthorized worker will increase from $375 to $539, and the maximum increases from $3,200 to $4,313. These fines apply to the employer’s first offense. For each additional offense, the penalty increases significantly and tops out at $21,563 per unauthorized worker.

The increases in penalties for Form I-9 paperwork violations are similarly stiff. The interim final rule increases the minimum fine from $110 to $216 per I-9 violation, and the maximum penalty increases from $1,100 to $2,156 for a single violation. Fines for I-9 paperwork violations are independent of any unlawful hiring violation. Since the I-9 fines apply to each discrete technical violation and increase with each additional offense, a growing business whose I-9 compliance process is out of compliance could face tens of thousands of dollars in fines if audited by Immigration and Customs Enforcement (ICE).

In addition, the U.S. Department of Labor will also increase penalties for H-1B visa related violations. For example, misrepresenting material facts on the Labor Condition Application now carries a maximum penalty per violation of $1,782. In addition, an employer that displaces a U.S. employee in the period starting 90 days before and ending 90 days after it files an H-1B visa petition faces a maximum penalty of $35,000 to $50,758 per violation, if it does so in conjunction with certain willful violations.

Although these increases are touted as merely keeping pace with inflation, they are problematic for employers that have a poor track record of either ensuring their new hires are authorized to work in the U.S. or completing I-9 paperwork accurately for their new hires. Since these new penalties apply to violations that occurred as far back as November 2015, many in the employer community suspect that ICE has been delaying issuing fines for older violations until now, to recover the higher penalties. Also it is reasonable to anticipate that workplace audits will increase in number since ICE now has greater financial incentives to find employers out of compliance.

An audit with the assistance of counsel allows employers to detect and potentially correct any I-9 or other immigration compliance issues. It can also help to train the personnel responsible for immigration compliance, preventing errors in the future. For further information regarding how the ICE regulatory environment affects your business, recruiting, and hiring, and assistance with auditing your Form I-9 process, please contact Patrick W. McGovern, Esq., the Director of our Immigration Law Practice Group, at 973-535-7129 or pmcgovern@nullgenovaburns.com.

Allison Benz, a recent summer associate at Genova Burns LLC, assisted in the preparation of this blog post.