PERSONAL NAFTA HARDSHIPS (Part 2)

(Jacob) (State of X Agency letterhead) February 9, 2006. EIN: xxxxxx Position: xxxxxxxxxxxxx Transportation Engineer I Dear Mr. (my name), This letter serves to clarify the nature of your employment relationship with the (State of X Agency). By accepting the accompanying sponsorship letter (to be presented to appropriate immigration authorities [i.e. Consular Office] for the purpose of obtaining a TN Visa for CY 2006, you acknowledge and attest to your full and comprehensive understanding of your status as an employee as defined under Personnel Rule xxxxxxxxx. As such, you will continue to be paid in U.S. dollars equal to only the U.S. dollar value. By accepting the accompanying sponsorship letter, you agree to discontinue your pursuit of remuneration equal to a dollar value other than that of the United States (i.e., Canadian dollar value). As the Agency has provided clarification to you as to the status of your employment relationship, your continued misinterpretation of the North American Free Trade Agreement (NAFTA) by which you incorrectly define your employment relationship with (State of X Agency) and subsequently demand remuneration in a dollar amount equal to that of the Canadian dollar will not be addressed further. By accepting the accompanying sponsorship letter, you agree to the employment terms and conditions of your status as an uncovered employee as defined by Personnel Rule xxxxxxxxxx, operating under the authority of State of X Revised Statutes xxxxx et seq. Failure to adhere to the aforementioned will result in the termination of your employment with the (State of X Agency) Name (print):_________________________ Signature:_____________________ Date:__________________ The letter referred to in para. 1 is the letter for my 5th TN Visa application. This is now being withheld from me by (State of X Agency), until I sign the letter quoted. My questions are basically: Is the text of the NAFTA legal and binding on (the State of X Agency) as a US entity? Is the text of 8 CFR Section 214.6 legal and binding on (the State of X Agency) as a US entity? Does each of these (NAFTA and 8 CFR Section 214.6) overrule State Personnel Rules? May I be called an “employee” and be subjected to State Personnel Rules? Is the above letter (with (the State of X Agency’s) interpretation of my “status” as TN professional as an “employee”) correct, or is it incorrect? Does the text in NAFTA (and also in 8 CFR Section 214.6) preclude or prohibit US entities (like the State of X Agency) calling me an “employee” instead of quoting the words “business person”? Would you have a suggestion for me to give to (the State of X Agency) to resolve this situation? Would you have a suggestion for me to try and convince (the State of X Agancy) to change the wording of the letter? They say they have a (verbal) legal opinion, but do not want to share it with me. Is there any relevant case law about this situation that you may quote? This matter is very urgent, because my 4th TN Visa lapsed yesterday. My wife and I planned to travel to (a border City in the State of X) to do the paperwork at the Port of Entry there. We agree that I should do everything in my power to continue working for (the State of X Agency) as I will be eligible for early retirement benefits on March 2, 2007. Please advise if I would deny myself some of the rights and privileges as a Canadian TN Professional if I sign this letter. I will try to meet with the Canadian Consul in (City in the State of X) on Monday, asking for his assistance. I hope to share this e-mail with him. (Jacob, City, State of X). Canadian citizen, currently undocumented alien in the US” (end of e-mail to Ottawa) (Note that there are at least three major errors in this (State of X Agency) HR coercion letter, which anybody with an elementary knowledge of the NAFTA will discover. (1) “Immigration authorities, and a Consular office” are not involved at all for non-immigrant visas, the test should have been “Customs and Border Patrol”. (2) A TN Visa is not for a Calendar Year, like H1-B Visas.) (3) It does not give proof at all of why I am wrong. This was obviously a letter to coerce me into silence, and I signed it, though under verbal protest, early that next week. In return, I received a letter to go to (a border City in the State of X) for my 5th TN Visa. (Twelve months later, in February 2007, my current supervisor approached the situation quite differently, staff had changed in HR, and I am still working here in (the State of X) with my 6th TN Visa.) However, two weeks after that difficult weekend, on the 27th of February, 2006, I received the following e-mail reply from Ottawa: "In answer to your questions, the NAFTA does not define the term “employee”. As far as the NAFTA is concerned, you would be considered a “business person”." Ottawa did not respond to the other questions. I have since kept a low profile on this issue, but have discovered some additional important information. 1. When I brought the information to the attention of the Canadian Consulate in (a City in the State of X), I received an e-mail from the Canadian Consulate General in (a City in the State of Y): "Your message directed to the Canadian Consulate in (a City in the State of X) has been forwarded to the Canadian Consulate General in (a City in the State of Y) for review and reply. Please note that the Consulate in (a City in the State of X) functions primarily as a trade office and does not address personal issues pertaining to citizens of Canada. I appreciate your detailed account of experiences leading to the current situation with regard to your employment; however, I regret to inform you that what you have described is beyond the Consular mandate of the Department of Foreign Affairs as it is a personal, legal matter." (My question: Although the NAFTA is a “trade” treaty, how can this suddenly be considered a “personal issue”?) 2. There is also no possibility to bring this issue to a NAFTA Panel for dispute resolution, like the Softwood Lumber issue. Ottawa’s Trade Services Policy Division responded to my question asking for this: "In response to your inquiry below, the dispute settlement mechanism under the NAFTA for Chapter 16 (Temporary Entry) is only applicable when there is a pattern of practice of people being denied entry into one of the NAFTA countries and the business person must have exhausted the available administrative remedies regarding the particular matter. In addition, the temporary entry provisions apply only with respect to entering the U.S. and the right to work there and do not govern relations with the employer of the terms of payment." (Comment: I know this is not a “pattern of practice”, and “the right to work” is not the issue either.) 3. The Personnel Requisition for the position into which I was hired, showed “External (State & non-state applicants)” as the type of recruitment. (My question, on which the whole thing may hinge: Does this definition include a foreigner from Canada who does not even have a passport at the time of the interview for a position he did not apply for? I guess not.) 4. My original supervisor (who interviewed me) made no reference to the NAFTA or my required TN Visa in his “short report” on the interviewing process with candidates, required under (the State of X Agency) EEO regulations. (My question: If it had mentioned this, I guess someone might have discovered that I had been inappropriately interviewed.) 5. Approval for my hiring (by the (State of X Agency) Upper Management, but not by HR) did not mention that I am a Canadian or that would need a TN Visa. (My question: Did (the State of X Agency) violate the federal statute called Title VIII, Chapter 12, Subchapter II, Part VIII, § 1324a – Unlawful employment of aliens): "(a) Making employment of unauthorized aliens unlawful (1) In general It is unlawful for a person or other entity— (A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment, or (B) (i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) of this section or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 1802 of title 29), to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b) of this section. (2) Continuing employment It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment. (h) Miscellaneous provisions (1) Documentation In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) authorized to be employed in the United States, the Attorney General shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement. (2) Preemption The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. (3) Definition of unauthorized alien As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General." 6. On the 18th of March, 2002, the day I started work, I signed Section 1 of Form I-9, and my supervisor signed Section 2. Section 3 needed to be “updated and reverificated” on an annual basis. To date, this has not been done. Form I –9 states that I was “an alien authorized to work until 02/28/2003 (Alien # or Admission # TN Visa) and my supervisor filled in the number of my I-94 Form. It is obvious that something fell between the cracks. I have been working in the USA for almost four and a half year beyond that date, and my Form I-9 Form has not been updated or reverificated. Did (the State of X Agency) violate yet another provision of the federal legislation? I guess so, because it is the State Agency HR Section (not my direct supervisor) that should have completed that. How do I know? The other Canadian TN Visa holders working for (the State of X Agency) have their Form I-9 reverificated on an annual basis. Well, there are fines for all this kind of waywardness: "(4) Cease and desist order with civil money penalty for hiring, recruiting, and referral violations With respect to a violation of subsection (a)(1)(A) or (a)(2) of this section, the order under this subsection— (A) shall require the person or entity to cease and desist from such violations and to pay a civil penalty in an amount of— (i) not less than $250 and not more than $2,000 for each unauthorized alien with respect to whom a violation of either such subsection occurred, (ii) not less than $2,000 and not more than $5,000 for each such alien in the case of a person or entity previously subject to one order under this paragraph, or (iii) not less than $3,000 and not more than $10,000 for each such alien in the case of a person or entity previously subject to more than one order under this paragraph; and (B) may require the person or entity— (i) to comply with the requirements of subsection (b) of this section (or subsection (d) of this section if applicable) with respect to individuals hired (or recruited or referred for employment for a fee) during a period of up to three years, and (ii) to take such other remedial action as is appropriate. In applying this subsection in the case of a person or entity composed of distinct, physically separate subdivisions each of which provides separately for the hiring, recruiting, or referring for employment, without reference to the practices of, and not under the control of or common control with, another subdivision, each such subdivision shall be considered a separate person or entity. (e) (5) Order for civil money penalty for paperwork violations With respect to a violation of subsection (a)(1)(B) of this section, the order under this subsection shall require the person or entity to pay a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred. In determining the amount of the penalty, due consideration shall be given to the size of the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations. (f) Criminal penalties and injunctions for pattern or practice violations (1) Criminal penalty Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) of this section shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels. (2) Enjoining of pattern or practice violations Whenever the Attorney General has reasonable cause to believe that a person or entity is engaged in a pattern or practice of employment, recruitment, or referral in violation of paragraph (1)(A) or (2) of subsection (a) of this section, the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the person or entity, as the Attorney General deems necessary." 7. I have recently become a whistleblower on this issue. I discovered the US Department of Justice Civil Rights Division Office of Special Council for Immigration-Related Unfair Employment Practices http://www.usdoj.gov/crt/osc/ which has at the FAQ’s & Forms a “Handbook for Employers” regarding the Form I-9. In this Handbook, it is clear that the employer (not the “employee”) is responsible for updating Form I-9, and that it also applies to Canadians, (FAQ 34) but does not seem to apply to “business persons”: "34. Q. Do I have to complete an I-9 for Canadians who entered the United States under the Free Trade Agreement? A. Yes. You must complete an I-9 for all employees. Canadians must show identity and employment eligibility documents just like all other employees." (Question: Does "like all other employees", mean that they are "employees"? That would not be in agreement with the NAFTA.) employees 8. So I brought the issue to the attention of the OSC in Washington DC. They consider it outside their jurisdiction. On 2007-07-02, I received the following e-mail: “This is in response to your e-mail dated June 15, 2007, to the Office of Special Counsel for Immigration-Related Unfair Employment Practices ("OSC") sent following our response to your May 25, 2007, e-mail seeking assistance with concerns related to your TN visa. Unfortunately, this office has no jurisdiction to aid you in this matter. As we mentioned in our previous email, OSC, a section within the Department of Justice’s Civil Rights Division, enforces the anti-discrimination provision of the Immigration and Nationality Act ("INA"). Among other things, the INA prohibits citizenship status discrimination in hiring and firing. Only U.S. citizens, recent permanent residents, asylees, and refugees are protected from citizenship status discrimination. Temporary, non-immigrant visa holders are not protected from citizenship status discrimination under the statute. In addition, although the INA prohibits retaliation, one must prove that adverse action was taken against him because of protected activity under the statute, such as filing a charge, assisting in an investigation, or asserting rights protected by the statute. Therefore, our office does not have jurisdiction to handle the issues you have raised about your TN visa employment status and rate of pay. In our last email, we recommended that you contact the U.S. Department of Labor and the Canadian government. It appears that you have contacted the Canadian government. Unfortunately, the only other assistance that we can offer in this matter is to suggest that you consider contacting a private attorney at your own expense. Your local bar association may be able to assist you in this regard. You can contact the (local County in the State of X) Bar Association Lawyer Referral Service at: www.lawyerfinders.org, tel. xxxxxxxxxxxxx. We hope this information is of assistance to you.” 9. Based on the earlier e-mail from OSC, I also brought the Equal Employment Opportunities Commission into the picture, here in the State of X, requesting mediation and immunity from retaliation. I have yet to hear from that office. 10. In the mean time, the Canadian dollar has fluctuated in value, with a recent steady increase to over 94 cents of its US counterpart. I have made regular calculations of the additional remunerations that I am owed, based on the difference in the exchange rate since the day I was “hired” – when the Canadian dollar was worth only 62.98 US cents. I have based this difference on my take-home pay only – and two weeks ago, the amount topped US$ 50,000. That is the net money owed to me, excluding interest, payment for four years of hardship, anguish and discrimination. 11. Now (the State of X) is currently a hothouse regarding “illegal immigration”, not really regarding “illegal non-immigration”. But here is an excerpt from (the State of X) Executive Order xxxx – Ensuring Compliance with Federal Immigration Laws by State Employers and Contractors – signed on October 18, 2005. It states: “Whereas, (the State of X) is committed to deterring unlawful employment practices, and ……. Whereas, the Immigration & Nationality Act provides a comprehensive scheme for employers to easily verify the immigration status of all job applicants without engaging in unlawful discrimination; …. Now therefore I, (name of Governor), Governor of the State of (X), by virtue of the powers conferred upon me by the Constitution and laws of the State, hereby order as follows: 1. All State agencies shall review and, if necessary, revise their own hiring practices to ensure compliance with all State and federal laws applicable to immigration, including, but not limited to, the (State of X) Department of Administration General Accounting Office Technical Bulletin xxxx, issued October 20, 2005 (or such subsequent policy publications that may supersede this technical bulletin). 12. Strange, but it appears that this latter mentioned document (Technical Bulletin xxxx) makes no point about the requirements on updating and reverification, like those in the federal “Employer’s Handbook”. Is this perhaps where part of the problem has lain for the past year and a half – that HR reads the Technical Bulletin and does not read the federal handbook? [Proofreader's note: this article was edited for spelling and typos on July 5, 2007]

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