I have a small business. I’ve had a fellow doing work for me for five years, who has been happily working and billing me as an independent contractor. Someone must have put a bug in his ear, as he has retained an atty and is suing me for $200K for being misclassified as an independent contractor. It’s terrible and has forced me to consult a bankruptcy attorney. The merits of his claim I’m consulting with an employment atty about. There's a twist to this that may make him stop. In early 2008, he married a woman from Mexico. He asked me if he could train her to be his asst/2nd camera-operator then use her on his shoots (he does camerawork for me in the field). I said yes. His 1099 for 2008 was $65K. At least $10K of that was for his wife's work. He billed for her on his invoices and made no secret of it, and I would write the check out to him. I just learned that she did not have work status at that time. In my mind, this indicates that he was operating as an independent contractor, because he was billing for a sub-contractor, and (worse?) he was employing a non-citizen who he knew did not have work status. Before I present this to him and his atty, and simply ask that they stop, I’d like to be sure that I’m correct. How do I find out her work status for then and now? How do I find out if they‘re still together and she‘s still in the country? (When I talk to them, I‘d feel foolish if I had this wrong). I’ve asked an employment atty if I’m right that his hiring and billing for a subcontractor does indeed confirm that he’s an independent contractor and not an employee. But am I right that if she did not have work status, then this is a very serious offense for both of them?
Update, added after this question was initially posted: I was just informed by an employment atty that to threaten to report that she did not have work status, in an effort to make him stop his action, is extortion and blackmail. I didn't think of that, and will in no way go forward with that. He did however, point out that his hiring and billing for a subcontractor is a strong indication that he's not an employee, and that he is responsible for reporting her as an employee...who happens to be illegal.Thank you very much.
San Francisco, California
Nothing else yet.
Ok. I'm not going to have very good news for you from the Immigration front. The "very serious offense" that you speak of would be a $250 to $2000 fine for hiring an illegal, at least if this is his first offense and there is no evidence that this is a normal practice of him to do this. The consequence for her, of course, if that she be deported unless he can petition for her as her spouse, which he probably would have done so if he could have, but she probably entered illegally and that makes all the difference and would explain if she is still illegal. That is because the law does not allow him to fix her status inside the U.S. So it is bad news for them, but probably not as bad as you would like it to be.
As far as finding those things out that you want to find out them, well, unless you are an immediate relative or they give you permission, the U.S. government will not release that information to you. But this does not prevent you hiring a private investigator to gather evidence, etc. etc.
I think your best bet is using the evidence that you have about him sub-contracting his spouse as evidence that he is a contract employee. The route you need to take with this is through that. However, if you decide that you do want to make a report to ICE, you can do so by going to www.ice.gov and calling the 800 number located on that page.
10+ years of experience in various aspects of U.S. Immigration Law.
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