Archive for the ‘Business Immigration’ Category

By Aaron Smith

The Indian company Infosys has reached a record $34 million settlement with federal prosecutors in Texas, to settle “allegations of systemic visa fraud and abuse of immigration processes.”

The U.S. Attorney’s Office of the Eastern District in Texas said that this is the largest payment ever levied in an immigration case.

The government accused software developer Infosys (INFY) of using workers with B-1 visas, which only allow temporary entry into the U.S. for business purposes, to perform skilled labor jobs.

The U.S. said these jobs should only be performed by workers with H-1B visas, which allow foreign nationals to enter the U.S. to perform a specialty occupation.

The government accused Infosys (INFY), a software developer, of using B-1 visa holders to perform skilled labor jobs that were supposed to be done by “legitimate” holders of H-1B visas.

The settlement says Infosys submitted letters to U.S. Consular Officials that “contained false statements regarding the true purpose of a B-1 visa holder’s travel in order to deceive U.S. Consular Officials and secure entry of the visa holder into the United States.”

It also says that Infosys issued a “dos” and “don’ts” memorandum directing B-1 visa holders “to deceive U.S. Consular Officials, including specific instructions to avoid certain terminology, to secure entry of the visa holder in the United States.” The memo allegedly included instructions to avoid using words like “work” and “contract” in certain communications with U.S. officials.

Infosys said it agreed to a civil settlement “relating to I-9 paperwork errors and visa matters that were the subject of the investigation. There were no criminal charges or court rulings against the company.” To top of page


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By Joanna Diane Caytas -Guest Author

These days, they might not have got one.

Keeping the homeland secure rather indiscriminately from allies and friends alike became one of the most ill-advised and unfortunate features of post-9/11 U.S. foreign policy – with detrimental effects on the battle for the hearts and minds in international relations. While 30 European countries, including post-communist Estonia, Latvia, Lithuania, Hungary, Slovakia and Slovenia already participate in the U.S. visa waiver program since years, Poland, a committed major U.S. ally in each and every major military conflict of the 20th century, does not. As president Obama famously said, “no country in Europe loves or loved the United States as much as Poland does or has in the past.” If there was any substance to the previous administration’s rhetoric conjuring up a “New Europe”, Poland had to be Exhibit A: with almost 40 million residents, it is by far the largest and fastest-growing market among the European Union’s Eastern enlargement, the largest addition to NATO with a significant contingent in Iraq, a regional leader in the Partnership for Peace program, a member of the Schengen Treaty.

Polish citizens continue to be denied practically important benefits of the visa waiver program ostensibly because 30% of tourist visa applicants are declined by U.S. consular officers. That rate is so high for the sole reason that the officers “suspect that applicants are going to work in the United States illegally.” Famously, it is not logically possible to prove a negative. The rejection threshold for a country to qualify for the U.S. visa waiver program has been set at 3%. Polish rejection statistics are crassly disproportionate, as a comparison shows: Poland and Lithuania were a single country for centuries – what, aside from its diminutive size, makes Lithuania different today? Its per-capita GDP certainly is much lower, so the motivation of its citizens to seek a better life in the U.S. should be much higher. Its value and track record as a military ally, aside from outposts closer to Russia, is negligible. While the U.S. government claims that some 70,000 Polish citizens have overstayed their visa in the past, it is also true that 75 million Americans claim at least partial Polish descent. Mexico, with three times the population of Poland, gave the U.S. almost one hundred times the number of undocumented Polish aliens.

Perhaps more importantly, continuation of the U.S. visa waiver criteria would not stand up to legal scrutiny if a rational standard of equal justice applied and the matter were subject to judicial review: while 30% of Polish applicants are denied visas on the mere suspicion by a consular officer of possible future overstaying, this disproportionate suspicion is unsupported by rational justification other than the fact that Polish undocumented aliens exist at all. A few exist, of course, but that is true of any country. This provides no valid reason to continue imposing a truly cumbersome visa requirement on 40 million Polish citizens that, for example, forces senior citizens wishing to visit relatives to travel hundreds of miles for a personal appearance for a mandatory visa interview at the nearest U.S. consulate. It would be worth researching my suspicion that the vast majority of undocumented Poles had, in fact, arrived in the U.S. before Poland joined the European Union in 2004. It is easy to see why: used to a fairly high standard of social benefits including universal health care at home, work-minded Poles can now find far better, risk-free employment in Northern and Western Europe including low-cost bus trips home, without a need to convince some border agent that they are “not terrorists.”

Today, Poland is growing rapidly, a fully industrialized and increasingly service-oriented emerging market, a hub in Central and Eastern Europe. Unemployment is barely higher than in the U.S. today. Of all post-communist countries already participating in the U.S. visa waiver program, Poland’s per capita GDP is higher than any other except for Slovenia and Slovakia. While foreign direct investment in the U.S. amounts to about 16% of GDP, Poland boasts more than twice that, 35% of GDP. This is an enormous vote of investor confidence in the local economy, and certainly not the harbinger of an exodus of skilled or unskilled labor.

Given the much higher cost of urban living in the U.S and a near total absence of medical and social benefits for unskilled labor, the proverbial expatriate Polish maid or Polish plumber are incomparably better off today in Britain, Germany or Italy where they neither need a visa nor a work permit. Hence, the diehard myth of some irresistible temptation to overstay U.S. visas to “make a quick buck” is no longer credible 22 years after Poland embraced capitalism in 1989. It is also nigh impossible to argue that inclusion of Poland in the U.S. visa waiver program would create some type of moral hazard: skilled labor typically will not turn to undocumented employment, and unskilled labor from Eastern Europe typically cannot or will not compete on price with Latin American, Asian or African undocumented immigrants already so readily available in the U.S.

Government statistics show that, overall, well over 5 million undocumented aliens from a variety of countries have entered the U.S. on a legal visa. This amounts to between one-third and one-half of the overall undocumented population. Visa requirements have appear not to have stemmed illegal immigration at all. While it is undeniable that an occasional Polish maid or construction crew might enter as tourists and sometimes depart a bit later than permitted, it should be noted that the U.S. Customs and Immigration Service upgraded their IT capabilities by leaps and bounds so that it is now easy for any immigration officer to determine if the traveler before him has ever overstayed his visa in the past – a determination would be grounds to deny the person re-entry and lead to deportation at his or her own expense. As overstaying becomes part of their permanent immigration record, extremely few individuals would choose to forgo future travel home along with any possibility of inviting relatives, compounded by substantial risk of deportation if caught out of status, or to abandon hopes of returning to the U.S. Poles do not have the option of the Rio Grande, nor would almost any consider entering through the woods of Maine. But if all this holds true, then all stated rational purposes of continuing the U.S. visa requirement (aside from national security which is not a significant consideration in the case of Poland) have in reality already been accomplished by improved electronic record keeping and has thus rendered the visa requirement for Polish visitors moot.

Not one valid reason remains to deny visa-free entry to the citizens of a country resoundingly acknowledged as America’s most loyal ally and friend besides Great Britain, whose intensely pro-American population once served as the model for the legend of a ‘New Europe.’ While the considerable expense for maintaining reliable electronic arrivals and departure records has become a necessary bureaucratic overhead after 9/11, continuing to devote resources to processing Polish visa applications is not. Since the dissolution of the Warsaw Pact in 1991, Poland unilaterally abolished visa requirements for U.S. visitors. More than twenty years later, the U.S. has yet to reciprocate. This stretches unacceptably the oft-cited “need for a transitory period.” The U.S. Senate approved in 2006 visa-free admission of Polish visitors by way of an amendment to an immigration reform bill. But since then, the matter has been mired hopelessly in the arcane politics and horse-trading surrounding U.S. immigration reform in general. It is difficult to imagine a cost-cutting move by the U.S. government that would create a bigger, more instantly effective surge of foreign goodwill and tourism than by abolishing visa requirements for Poles. Seeing this demand persistently ignored has already led the European Union to threaten imposition of visa requirements for U.S. citizens in all of Europe as a matter of reciprocity if the “Polish visa question” cannot be resolved now, at long last.

Bizarrely enough, modern-day Kościuszkos and Pułaskis could end up needing a European visa if it occurred to them to visit their folks at home….

The U.S. Visa Waiver Program was created in 1986, during the Cold War, in an era when surgical removal of pointless and ineffectual bureaucratic malignancy was still a programmatic priority to the Reagan administration.

Can we start finding our way back to the future?

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By and
Published: June 15, 2012

Hundreds of thousands of illegal immigrants who came to the United States as children will be allowed to remain in the country without fear of deportation and able to work, under an executive action the Obama administration announced on Friday.

Administration officials said the president used existing legal authority to make the broad policy change, which could temporarily benefit more than 800,000 young people. He did not consult with Congress, where Republicans have generally opposed measures to benefit illegal immigrants.

The policy, while not granting any permanent legal status, clears the way for young illegal immigrants to come out of the shadows, work legally and obtain driver’s licenses and many other documents they have lacked.

“They are Americans in their heart, in their minds, in every single way but one: on paper,” President Obama said in announcing the new policy in the White House Rose Garden on Friday. He said he was taking “a temporary stopgap measure” that would “lift the shadow of deportation from these young people” and make immigration policy “more fair, more efficient and more just.”

Under the change, the Department of Homeland Security will no longer initiate the deportation of illegal immigrants who came to the United States before age 16u, have lived here for at least five years, and are in school, are high school graduates or are military veterans in good standing. The immigrants must also be not more than 30 and have clean criminal records.  It applies to people who came to the United States as children and were no more than 30 years old — not “under 30 years old” — at the time the policy was changed by the administrative action.

Young people, who have been highly visible and vocal activists despite their undocumented status, have been calling on Mr. Obama for more than a year to stop deporting them and allow them to work. Many of them were elated and relieved on Friday.

“People are just breaking down and crying for joy when they find out what the president did,” said Lorella Praeli, a leader of the United We Dream Network, the largest coalition of illegal immigrant students.

Republicans reacted angrily, saying the president had overstepped his legal bounds to do an end run around Congress. Some Republicans accused Mr. Obama of violating the law. “The president’s action is an affront to the process of representative government by circumventing Congress and with a directive he may not have the authority to execute,” said Senator Charles E. Grassley of Iowa, the senior Republican on the Senate Judiciary Committee. “It seems the president has put election-year politics above responsible policies.”

In many ways, the president’s move was a clear play for a crucial voting bloc in states that will decide whether he gets another term. It also held the potential for considerable payoff.

The action was the first measure by Mr. Obama that offers immediate relief to large numbers of illegal immigrants, in contrast to smaller steps the administration had taken that were intended to ease the impact of deportations but in practice had little effect. During the three years of his term, Mr. Obama has deported more than 1.1 million immigrants, the most by any president since the 1950s.

“Now let’s be clear: this is not an amnesty,” Mr. Obama said in the Rose Garden, anticipating the Republican response. “This is not a path to citizenship. It is not a permanent fix.”

The group of illegal immigrants that will benefit from the policy is similar to those who would have been eligible to become legal permanent residents under the Dream Act, legislation that Mr. Obama has long supported. An effort by the White House to pass the bill in late 2010 was blocked by Republicans in the Senate. Mr. Obama called on Congress again Friday to pass that legislation.

The president was facing growing pressure from Latino leaders and Democrats who warned that because of his harsh immigration enforcement, his support was lagging among Latinos who could be crucial voters in his race for re-election.

Illegal immigrants said the new policy would make a major difference in their lives. As students, when they graduate from high school, they often cannot go on to college because they are not eligible for financial aid and must pay higher tuition rates. If they do succeed in graduating from college, regardless of their academic accomplishments, they cannot be legally employed in the United States or obtain driver’s or professional licenses.

The Pew Hispanic Center, a nonpartisan research group in Washington, estimated on Friday that as many as 1.4 million immigrants might be eligible for the new measure. The vast majority are Latinos, with about 70 percent born in Mexico. Many of the students live in states that could be pivotal for Mr. Obama’s re-election prospects, including Colorado, Florida, Nevada and New Mexico.

Nationally, a Pew Center survey in December found that 91 percent of Latinos supported the Dream Act.

For immigrants who come forward and qualify, Homeland Security authorities will use prosecutorial discretion to grant deferred action, a reprieve that will be valid for two years and will have to be renewed. Under current law, that status allows immigrants to apply for work permits.

In a memorandum issued Friday referring to the students, Homeland Security Secretary Janet Napolitano instructed all enforcement agents to “immediately exercise their discretion, on an individual basis, in order to prevent low-priority individuals from being placed into removal proceedings.”

But Homeland Security officials said they would begin accepting requests from immigrant students in 60 days, leaving time to prepare procedures to handle the huge response they expect.

Representative Steve King, Republican of Iowa, who is an outspoken critic of illegal immigrants, said he would bring a lawsuit against the White House to stop the measure.

White House officials said they chose Friday for the policy shift because it is the 30th anniversary of a Supreme Court decision, Plyler v. Doe, that effectively established that all children, regardless of immigration status, were entitled to public education through high school.

Immigrant student leaders praised Mr. Obama, saying his action should convince other students that advocacy could be effective, even for immigrants without legal status. Although the reprieve is temporary, the leaders said they expected that the majority of students would seize the opportunity to work and come out into the open.

“We’ve done away with the fear,” said Gaby Pacheco, 27, an Ecuadorean-born immigrant who was among the first in a wave of students in recent years who “came out” to declare publicly that they were in this country illegally.

Mr. Obama also received praise from Democratic lawmakers, including the Hispanic Caucus in the House and Richard J. Durbin of Illinois, the second-highest Democrat in the Senate who is the leading author of the Dream Act. Mr. Durbin first proposed in April 2010 that the president should grant deferred action to young students.

Over the past two months Mr. Durbin and other top Democrats, including Senator Harry Reid of Nevada, the majority leader, have quietly urged Mr. Obama to do something significant to help immigrant students.

Maricela Aguilar, 21, who was born in Mexico and lives in Wisconsin, said she was in Los Angeles with a group of students when the news came of the new policy.

“We were all watching and listening and screaming out in joy,” she said. Ms. Aguilar graduated last month from Marquette University, but feared she would never find work professionally.

Some students were cautious, recalling that Mr. Obama had promised them help before. “We don’t want to get too excited,” said Daniela Alulema, 25, an illegal immigrant from Ecuador who is a leader of the New York State Youth Leadership Council. “We hope that what was announced will be implemented and will actually help our community.”

Kirk Semple and Richard W. Stevenson contributed reporting.

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Number 46
Volume IX
Washington, D.C.


1. This bulletin summarizes the availability of immigrant numbers during July. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status. Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by June 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed. The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits. Only applicants who have a priority date earlier than the cut-off date may be allotted a number. If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed. Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal. The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit. These provisions apply at present to the following oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:


First: (F1) Unmarried Sons and Daughters of U.S. Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents: 23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens: 65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

All Charge-ability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
F1 08JUL05 08JUL05 08JUL05 08JUN93 15JUL97
F2A 15FEB10 15FEB10 15FEB10 01FEB10 15FEB10
F2B 01MAY04 01MAY04 01MAY04 01JAN92 22DEC01
F3 15APR02 15APR02 15APR02 22JAN93 22JUL92
F4 22JAN01 08JAN01 22JAN01 08JUN96 01FEB89

*NOTE: For July, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01FEB10. F2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01FEB10 and earlier than 15FEB10. (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5. Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:


First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)
Employment- Based

All Chargeability Areas Except Those Listed
1st C C C C C
2nd 01JAN09 U U 01JAN09 01JAN09
3rd 22JUL06 22SEP05 22SEP02 22JUL06 08JUN06
Other Workers 22JUL06 15JUN03 22SEP02 22JUL06 08JUN06
4th C C C C C
Certain Religious Workers C C C C C

Employment Areas/
Regional Centers
and Pilot Programs

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.


Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2012 annual limit to 50,000. DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year.

For July, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region All DV Chargeability Areas Except Those Listed Separately
EUROPE CURRENT Except: Uzbekistan 17,700

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery. The year of entitlement for all applicants registered for the DV-2012 program ends as of September 30, 2012. DV visas may not be issued to DV-2012 applicants after that date. Similarly, spouses and children accompanying or following to join DV-2012 principals are only entitled to derivative DV status until September 30, 2012. DV visa availability through the very end of FY-2012 cannot be taken for granted. Numbers could be exhausted prior to September 30.


For August, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:
Region All DV Chargeability Areas Except Those Listed Separately

Continued heavy demand for numbers in the Employment Second preference category has required the establishment of a Worldwide cut-off date for the month of July. This action has been taken in an effort to hold number use within the annual numerical limit. Should there be an increase in the current demand pattern, it may be necessary to make this category completely “unavailable” prior to September 30, 2012.

The China and India Employment Second preference categories are already “unavailable”, and will remain so for the remainder of the fiscal year.


The Department of State’s Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at http://www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:


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by Max Jarman – Apr. 20, 2011
The Arizona Republic

Chuy’s Mesquite Broiler restaurants in Arizona and California were raided by federal agents Wednesday in the culmination of a lengthy investigation into alleged tax fraud and illegal hiring practices at the chain.

Chuy’s father-and-son owners, Mark Evenson of Paradise Valley and Christopher Evenson of Oro Valley, were arrested Wednesday along with the company accountant, Diane Strehlow of Tempe.

The three are scheduled to be arraigned in U.S. District Court in Tucson on Thursday on 19 counts ranging from the unlawful hiring and harboring of illegal aliens to conspiracy to defraud the IRS and tax evasion.

The indictment followed a lengthy investigation conducted by U.S. Immigration and Customs Enforcement officers, Homeland Security Investigations agents and the Internal Revenue Service.

Chuy’s operates 13 locations in Arizona, including six in metro Phoenix and seven in the Tucson area. The company has nine locations in Southern California. There was no answer at a sampling of restaurants called Wednesday afternoon.

According to the indictment, the Evensons hired undocumented aliens to work in their restaurants’ kitchens and paid them under the table with no taxes withheld or reported to the IRS.

U.S. Attorney Dennis Burke accused the Evensons and Strehlow of dodging at least $400,000 in payroll taxes over the course of two years in order to maintain their illegal workforce.

“There should be no place in our economy for employers who cynically exploit and defy the U.S. tax code to take advantage of illegal labor,” he said.

Legal workers, who were hired for server positions, were paid under a different system in which proper withholdings were made.

On multiple occasions, Mark Evenson is alleged to have directed employees not to run information on illegal workers through government databases because they would “come and pick them up.”

When he received a complaint about illegal workers at a restaurant in Lake Havasu City, he reportedly told an employee that “throwing some American people in there” might stop the complaints, according to the indictment.

If convicted of all the charges, Mark Evenson faces up to 86 years in prison and a $5.33 million fine. Christopher Evenson faces up to 81 years in prison and a $5.08 million fine. Strehlow faces a maximum prison term of 40 years and a $2 million fine.

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By LINDA S. MORRIS and MAGGIE LEE – Telegraph staff

Sunday, Feb. 20, 2011

Donald Chase and his father farm 1,600 acres in Macon County, and if proposed immigration rules being considered by Georgia lawmakers go into effect, Chase and lot of farmers are worried it will cost them more than time and money.

Some farmers say it could put them out of business. 

While the immigration rules intended to stem undocumented workers would affect many private employers, agriculture is the state’s largest industry — valued at more than $11.3 billion in 2009 — and would be one of the hardest hit.

At the heart of House Bill 87 and Senate Bill 40, as originally written, is that employers will be required to use E-Verify — a federal online employment verification program — to confirm the legal status of employees to work in this country. It would not apply to farmers who use the H-2A program, sometimes referred to as the federal guest worker program, which allows farmers to fill temporary jobs with non-U.S. citizen workers.

E-Verify, authorized in 1996, is administered by the United States Citizenship and Immigration Service and compares information from an employee’s Form I-9 — Employment Eligibility Verification — to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.

Although currently a voluntary program in most states, E-Verify is mandatory for employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation E-Verify clause.

If undocumented workers are knowingly employed, employers could be fined or serve time in jail.

“The whole idea is it puts the burden on us as employers to police the whole system when this is a federal issue,” Chase said. “Besides putting an undue burden on the employer, it puts agriculture at a huge disadvantage. I don’t want to be locked up.”

Chase Farms Inc. raises peanuts and corn and has a poultry operation. This past week, Chase was spraying a field of winter rye off Pine Level Road near Montezuma to prepare the field for planting corn in a few weeks. Nearby, a crew was working on an irrigation system.

When Chase hires Hispanic workers to work on the farm, he asks for proof that they are in this country legally and he withholds all required taxes and Social Security based on the law, he said. Immigration laws have many exceptions and are complicated to follow, he said.

“If they want to send them all back to Mexico, then send them all back to Mexico,” Chase said. “If they want to provide some tool for citizenship, I’m OK with that.”

Rodney Dawson, who farms about 1,500 acres of peanuts and 5,000 acres of cotton in Pulaski and Wilcox counties, said he uses eight to 12 immigrants, mostly for the cotton harvest. He does not go through the H-2A program because he only needs the workers for up to 10 weeks.

Dawson is concerned about having to use E-Verify and fears it will keep immigrants — even legal ones — from working here.

“I don’t know where we’ll find the workers,” he said. “You can’t find people from here who are interested in the type of work (immigrants) will do for us. … When it’s 100 degrees, they don’t mind working.”

Dawson said he supports something that would keep people from entering the country illegally.

“But we need some type of system that lets immigrants come into this country to work, because we need them,” he said.

Legislators discuss farm worker programs

Bryan Tolar, president of the Georgia Agribusiness Council, said during a House Rural Caucus discussion last week that agriculture and small business in the state needed a “W-Verify” — a play on E-Verify — as a way to check people who are willing to work on farms.

“If we had a list of those people, I’d like to get it because we’re trying to find them every day,” Tolar said.

Tolar elaborated that agriculture is not just peach fields and poultry farms; it’s a bigger web that includes industry and services like cotton ginners, peanut mills, and agricultural retail and financing. All of that ultimately depends on workers under the sun.

Tolar said HB 87, authored by Matt Ramsey, R-Peachtree City, is a good bill.

“We’re just having disagreement on this one particular issue” of E-Verify, Tolar said. “If you’re hiring someone without an I-9, you’re in violation of federal law. And if you’re already in violation of federal law, E-Verify is not going to do anything to affect you. “

He acknowledged that it is possible to get legal labor under the agricultural guest worker H-2A visa program, which requires employers to provide transport, housing, at least $9.11 per hour, and worker’s compensation insurance. By Tolar’s calculation, that drives labor costs from somewhere between $7.50 and roughly $9 per hour to $13.50 per hour and requires a pre-order with the federal government. About 20 farms in the state do that, he said.

Tolar said federal programs that help employers hire temporary workers are “essential,” but added that only the federal government can change them.

The jobs, “honestly, they’re not all that desirable,” he said. But the industry is becoming more dependent on the dexterity of human hands in vegetable fields that are taking over machine-harvestable commodities like peanuts and cotton.

“We have a very difficult process of getting workers now because they don’t show up,” Tolar said. “And the ones that do show up, we got to run through an extra hurdle? That’s why we disagree with this.”

Jon Huffmaster, legislative director for the Georgia Farm Bureau, said at the same meeting that E-Verify is too burdensome for farmers. He passed out copies of the 82-page user manual to prove his point.

If E-Verify says a person might not have their papers, the worker has 18 working days to settle the issue with the federal government, Huffmaster said. In the meantime, the employee stays at work.

“You as the employer have to go back and forth and check E-Verify, he said. “It’s not like they contact you. You have to go to the website and log on and check each case for yourself. “

Huffmaster conceded the program is probably doable for any company big enough to have a human resources department, but “for small businesses and for farmers, we just believe it’s going to be a more cumbersome thing than a lot of people tend to think.”

Rep. Penny Houston, R-Nashville, opined in the ensuing discussion that there is a difference between people who move to a specific place versus who she called “true” migrant workers, who follow the harvest from Florida to the Great Lakes in a season.

“We need some sort of permit for true migrant workers,” Houston said.

House bill author Ramsey, sitting in at the meeting, said he is hearing complaints about E-Verify.

“There are 20 sections in the bill,” he said. “Is it truly just the E-Verify? If it’s just E-Verify, tell me it’s just E-Verify. Because I want to know exactly what kind of parameters you’re concerned on. If it’s down to the implementation of E-Verify, we’re just going to have to talk about it.”

Committee hearings are already under way on House Bill 87, but no hearing date has been scheduled for Senate Bill 40.

Finding farm workers a tough job

The majority of farm immigrants in this country are Hispanic, and the total Hispanic population in Georgia is 780,000, which is 8 percent of the total state population, according to the Pew Hispanic Center.

As of March 2010, there were 11.2 million undocumented immigrants living in the United States, which is virtually unchanged from a year earlier, according to the Pew Hispanic Center. The largest group of undocumented immigrants is from Mexico.

According to a variety of sources, there are anywhere from 300,000 to 400,000 undocumented immigrants living in Georgia.

Farmers have a hard time finding workers now that want to do the physically difficult labor required, and many feel the new rules would make it even harder.

“The people who catch my chickens, they are contract workers for either Tyson or Perdue who are Hispanic,” Chase said. “Nobody wants to catch chickens, and so I don’t know what happens to those guys. In the farm sector, it appears the Hispanics are much more willing to do the work than perhaps anyone else.”

One of the issues many farmers have with E-Verify is that employers must hire a worker before they can search the federal system to verify the employee’s work status.

Another issue is the employer must have a designated person who must be trained on the E-Verify system and know all the guidelines and regulations before the employer can be registered as an E-Verify user.

“It’s adding just an additional burden that’s not required at the federal level,” said Charles Hall, executive director of the Georgia Fruit and Vegetable Growers Association based in LaGrange. “And we are depending on a federal program that may or may not be funded. … I read something that said if everyone in the U.S. was required to do mandatory E-Verify, there would be something like 200,000 people a year who would have to go to the Social Security office to get paperwork straightened out — and they are U.S. citizens. The system is not accurate, so that’s a big concern.”

Another problem is if Georgia has the E-Verify requirement and other states like Alabama and Florida don’t, it would cause “a patchwork of states that have additional requirements on hiring than other states,” Hall said. “From an economic development standpoint, that’s not good for the state of Georgia.”

Federal programs cumbersome

While farmers who participate in the H-2A program don’t have to adhere to the E-Verify program, the H-2A program presents another level of costly, time-consuming requirements.

Chase said he doesn’t participate in the H-2A program.

“We are fairly mechanized,” he said. “But if (H-2A) were less complicated, I might use it.”

Brian Watkins, who farms about 2,000 acres in Dodge and Telfair counties, has participated in the H-2A program in the past, but “that turned out to be a very big problem,” he said. Watkins had used a contractor to provide the workers, but something went wrong and he ended up responsible.

“It painted a target on us and we had more government inspections than ever,” he said. “And we were trying to do it perfectly.”

Watkins raises cotton, peanuts and corn as well as some cattle. He also usually has watermelons and cucumbers, and at certain times bell peppers and broccoli, he said.

“We do use a lot of Hispanic workers,” he said. “Our payroll is just like it would be for anybody. They have all the right paperwork and everything.”

But the problems with the H-2A program forced Watkins to cut back on his vegetable operation this year.

“We’re not planting any watermelons and we will probably downsize on our cucumbers because of the regulations,” Watkins said. “And it’s getting too hard to find help. … I just use local (Hispanics) who live here year-round” who have all the necessary legal documents.

“Some of the people they are calling illegals have been working and living here 20 years and raising families, and the government knew they were here for years,” he said. Many of these families have paid into Social Security and payroll taxes for years.

“The federal government took their money for 15 years and now all of a sudden they are going to ship them out and send them home,” Watkins said. “It’s hard for me to sit down here in Milan, Georgia, and say what they should or shouldn’t do, but I know what they are doing now is making it hard for us.”

Rep. Jimmy Pruett, R-Eastman, said something has to be done about undocumented immigrants who tap into state services, but he acknowledged that E-Verify presents problems.

“If you have any reservation” about the status of a potential employee, “you’re not going to run them through E-Verify,” Pruett said. So for him, the statistics that show more than 90 percent of people pass E-Verify are meaningless.

Frank Funderburk, executive director of the Georgia Peach Council and part-time extension agent for Peach County, said the E-Verify program will not affect the peach industry because they are enrolled in the H-2A program. “Our growers can’t afford to not have a work crew,” Funderburk said. “They bit the bullet several years ago (and joined H-2A) and they jumped from paying $7 an hour to $9.”

Funderburk agreed with the farmers who say they can’t find local people to work in the fields and orchards. When the economy slowed and unemployment numbers increased, more locals were applying for farm jobs, but “they couldn’t physically do some of the work. … It’s strenuous work and nobody in America — and me included — wants to do it. It’s either have illegals or migrants that are willing to do it or buy all our food abroad. Not only would it cost more, but there is the whole issue of what has it been sprayed with or fertilized with.”

Sen. Johnny Isakson, R-Ga., spoke earlier this month to a large group that included farmers and others in the agribusiness industry during a 2011 Ag Forecast meeting in Macon.

“Immigration is a hot issue,” Isakson said. “I know our state legislature is dealing with that now, but quite frankly, that’s a federal government issue.”

The federal government tried to fix the immigration problem in 2006, but it ended up looking like an amnesty program for illegal immigrants, Isakson said.

“I regret that the states have the burden of trying to deal with it when the federal government is not,” he said. “I am going to continue to see to it that we get an immigration policy at the federal level that is enforced, so you at the state level can depend on a reliable immigration work force that is legal to work in the agriculture industry in Georgia.”

Hall agreed that the federal government should regulate immigration.

“Georgia can’t do anything about (undocumented workers) here, but the feds can, as far as replacing those workers with guest workers,” he said. “That’s why it needs to be done at the federal level and not at the state level.”

To contact writer Linda S. Morris call 744-4223.

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January 27, 2011
ICE:  Immigration Customs Enforcement

NEW HAVEN, Conn. – David B. Fein, U.S. Attorney for the District of Connecticut, announced today that Anthony DiBenedetto, 64, of North Branford, Conn., waived his right to indictment and pleaded guilty yesterday to one count of unlawful employment of illegal aliens. This guilty plea is the result of an investigation conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI).

According to court documents and statements made in court, DiBenedetto owns and operates Rocco’s Bakery, with locations in New Haven and Meriden, Conn. From approximately 2000 through May 2008, DiBenedetto employed at least 10 individuals at his bakeries knowing that they were in the country unlawfully and were not authorized to work.

U.S. District Judge Mark R. Kravitz has scheduled sentencing for April 14, 2011, at which time DiBenedetto faces a maximum term of imprisonment of five years and a fine of up to $250,000. DiBenedetto also may be ordered to forfeit a money judgment in an amount that will be determined by the court.

This matter has been investigated by ICE HSI and the U.S. Department of Labor, Office of Inspector General.

The case is being prosecuted by Assistant U.S. Attorney Douglas P. Morabito.

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