Slide 1

Report
•Davis C. Bae
•[email protected]
•(206) 626-6422
Understanding the Changing
Immigration Landscape – Preventive
Strategies in Corporate Immigration
Compliance
© 2010 Jackson Lewis LLP
www.jacksonlewis.com
Introduction
• 11,000,000 people are in the United States without
Documentation
• 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
System
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 http://www.uscis.gov/files/form/i-9.pdf
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
13
The New Form I-9
14
The New Form I-9
15
The New Form I-9
16
The New Form I-9
17
The New Form I-9
18
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
photograph

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
only.
• 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
Receipts
• An employee may present a receipt for a
replacement of a lost, stolen, or damaged
document
• 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
authentic?
Document Acceptance Standards
Reasonable?
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
Rehire
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
-OR-

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
retained.
• 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
2
•
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
1324b.
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
audits.
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Pandora’s Box of issues
• Social Security Administration
• Securities and Exchange Commission
• Union Negotiations
• Subcontractor Liability
• Foreign Corrupt Practices Act
• Federal Contract Debarment
• EAR/ITAR
Preparation
• 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

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