Slide 1

•Davis C. Bae
•[email protected]
•(206) 626-6422
Understanding the Changing
Immigration Landscape – Preventive
Strategies in Corporate Immigration
© 2010 Jackson Lewis LLP
• 11,000,000 people are in the United States without
• Approximately 4-6% of the workforce
• 50% of H-1B filings were denied for lack of visas
• Indian and Chinese professionals may wait 20 years for
immigrant visas
• The question is not whether we should fix the system but
how and when?
• What does this mean for employers?
What did Obama announce?
• Executive Action is the use of administrative authority and
discretion to execute the law.
• Enhancing border security measures.
• Changing the focus of removal targets.
• Assistance with business immigration.
• Increased opportunities for entrepreneurs.
• Expansion on Deferred Action.
Deferred Action
• Deferred Action on Childhood Arrivals (DACA)
Must have arrived by 16th birthday and continuously
lived in U.S. since January 1, 2010.
Graduate high school or have GED or be in school.
No convictions of felonies and certain criminal offense.
• Deferral Action for Parental Accountability (DAPA)
Must be in the U.S. continuously from January 1, 2010.
Must have U.S. Citizen or Permanent Resident Children.
No convictions of felonies and certain criminal offenses.
Legal Challenges
• 17 States initially sued President Obama for going beyond
presidential authority.
• 12 States have filed briefs in support the Executive Action.
• State actions to deter use of deferred action.
• Congress threatens to defund immigration.
• Congress is attempting to pass its own bill.
• Future presidents could theoretically take opposing
executive actions.
Effect on Employers
• Increased clarity on business immigration needs
• Changes in identity of employees
• Potential Fraud Investigations
• State-by-state inconsistencies
• Protections by unions
I-9 Strategy and Tactics
• Nationalizing I-9 Audits
ICE Employment Compliance Inspection Center in
Crystal City, Virginia
Coordinated waves of I-9 NOI
Bar Coding and employee data collection
Increase in the applications for S and U Visas
USCIS Compliance Tracking and Management
I-9 Civil Fines
• Knowingly Hire/Continuing to Employ
First Offense -$375 to $3,200 per violation
Second Offense - $3,200 to $6,500 per violation
More than 2 offenses - $4,300 to $16,000 per violation
• Substantive/Uncorrected Technical Paperwork Violations
$110 to $1,100 per violation depending upon number of
offenses and level on non-compliance
Introducing the New Form I-9
• Released March 8, 2013
• Older versions permitted for 60 days
• Must begin using new form by May 7, 2013
• Must also be used for reverification and rehires
• Available at
Who completes the I-9?
• Employers must complete Form I-9 for all employees hired
after November 6, 1986.
• I-9s are not required for:
Workers not directly employed (volunteers or
independent contractors)*
Persons transferring within company
Rehires returning within 3 years of completing initial I9*
Employees returning after a leave of absence, labor
strike or dispute, or a return for seasonal employment
When does the I-9 need to be completed?
• The I-9 may be completed as soon as there is an offer and
acceptance of employment
• Section 1 must be completed by the employee no later than
the day that the employee begins work
(*hire date not always the same as start date)
• Employee must provide document(s) for verification and
Employer must complete Section 2 within three days, else
employee must be removed from payroll
The I-9: Three Little Sections
• Section 1: Employee biographical info and employee
certification as to basis for work eligibility.
• Section 2: Employer’s verification that employee
presented documents to prove identity and work eligibility
and that Employer reviewed them.
• Section 3: If employee’s authorization to work is set to
expire during employment, employer verifies and records
authorization renewal. Also used for rehires.
The New Form I-9
The New Form I-9
The New Form I-9
The New Form I-9
The New Form I-9
The New Form I-9
Properly Completed Section 1
Properly Completed Section 1
Properly Completed Section 1
Previous I-9: Section 1
Employee biographical info & employee certification as to basis
for work eligibility.
Properly Completed Section 1
Properly Completed Section 2
Properly Completed Section 2
Properly Completed Section 2
Properly Completed Section 2
Properly Completed Section 2
Properly Completed Section 2
Properly Completed Section 2
Previous I-9: Section 2
Employer’s verification that employee presented
documents to prove identity and work eligibility.
Properly Completed Section 2
Properly Completed Section 2
Properly Completed Section 2
Properly Completed Section 2
Acceptable I-9 Documents
• The employee is required to present either:
1 document from List A
-OR1 document from List B -AND1 from List C
• A complete list of documents can be found in the I9 Instructions.
• Employers CANNOT specify which documents they
will accept.
• Employers must accept any document that appears
genuine on its face.
Items for “List A”
• Items in List A establish both identity and
employment eligibility.
• Acceptable items include:
US Passport
US Permanent Resident Card
Unexpired foreign passport with I-551 stamp or
machine printed visa with I-551 notation
Employment Authorization Document (EAD) that
contains photo
Unexpired foreign passport with matching I-94 card
that authorizes the alien to work for the employer
Items for “List B”
• Items in List B establish identity only
• Acceptable items include:
US drivers license or ID card with
A Federal ID card with photograph
A school ID card with photograph
A voter registration card
A military ID or military draft record
Items for “List C”
• Items in List C establish employment eligibility
• Acceptable items include:
US Social Security card (that does not state
that the card is not valid for employment)
US birth certificate
An EAD with no photo
• An employee may present a receipt for a
replacement of a lost, stolen, or damaged
• A receipt fulfills the verification requirements of
the document for which the receipt was issued (can
be List A, List B, or List C)
• The receipt is valid for 90 days from date of hire or,
for reverification, the date employment
authorization expires.
• At the end of the 90 days, the employee must
present the actual document for which the receipt
was issued
Document Acceptance Standards
The I-9 states that you must review the original documents
presented to determine if they are “genuine” and “relate” to the
person presenting them to you.
Reasonable Person Standard
Document Acceptance Standards
• Reasonable Person Standard
Does the document appear
valid on its face?
Would a “reasonable person”
believe this document to be
Document Acceptance Standards
Examples: Newest Permanent Resident Card
Examples: Common Permanent Resident Card
Examples: Employment Authorization Document
Examples: I-94 Card with Visa Stamp
Examples: I-551 Stamp
Examples: Visa / Visa with I-551 Notation
Examples: Unacceptable Social Security Cards
Properly Completed Section 3
Previous I-9: Section 3
Properly Completed Section 3
Expired Work Authorization
Properly Completed Section 3
I-9 Re-verification
• Employees who are not US citizens or are not US
permanent residents are likely working pursuant to a
temporary work visa.
• The work eligibility will expire on a certain date, and
the employer is required to note the expiration of the
eligibility document on the I-9.
• The employer must update the I-9 before the
document expiration date, and must re-verify that the
worker’s eligibility has been extended.
• Generally, only expiring employment eligibility
documents need to be re-verified, not expiring
identification documents.
I-9 Recordkeeping Requirements
• Employers must keep an I-9 for all current employees
• For terminated employees, must keep for the later of:
3 years from employment start date
1 year after termination
• Federal I-9 law does not require employers to retain copies
of the verified documents; however, some states require
that you do. E-Verify also requires certain documents to be
• Should I keep copies of the documents?
On one hand, it shows a good faith effort on the part of the
employer to comply with verification requirements
On the other, the government has additional evidence to
prosecute you with for any mistakes that you make
Common I-9 Violations
• Substantive Violations
Failure to complete Form I-9 for each new hire
Failure to produce for each new hire in audit
Lack of employee signature in Section 1 of Form I-9
Lack of employee status attestation in Section 1
Multiple employee status checks in Section 1
Lack of employer attestation and signature in Section
Improper document description in Section 2
Failure to complete Section 2 certification and enter
date of hire within three (3) days of hire
Discrimination and Document Abuse
• Prohibited Conduct Under the INA’s
Anti-Discrimination Provision at 8 USC
o Citizenship Status Discrimination
o National Origin Discrimination
o Document Abuse
o Retaliation
Office of Special Counsel
The Office of Special Counsel has been charged with protecting
employees from citizenship and nationality discrimination.
This includes reviewing E-Verify data to determine if there is a
basis for patterns of discrimination. Statistical anomalies may
result in OSC audits which are far more detailed than I-9
Pandora’s Box of issues
• Social Security Administration
• Securities and Exchange Commission
• Union Negotiations
• Subcontractor Liability
• Foreign Corrupt Practices Act
• Federal Contract Debarment
• Review your honesty provisions in employee handbooks.
• Review internal immigration compliance policies
• Conduct an I-9 audit
• Provide training to managers to avoid obtaining actual
knowledge of employee status
• Consider providing information on immigration reform to
avoid questions that lead to actual knowledge of status
• Consider E-Verify

similar documents