The New I-9 Form and Other Developments in Immigration Law

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1 The New I-9 Form and Other Developments in Immigration Law Kelly M. Fortier José A. Olivieri May 9, 2013

2 Overview Enforcement trends Form I-9 changes Compliance tips Current immigration hurdles to hiring/retention Potential immigration law reform

3 Immigration Reform & Control Act (IRCA) Prohibits employers from knowingly hiring undocumented workers Requires employers to verify that employees have the right to work in the U.S. via Form I-9 Prohibits use of contract or subcontract to obtain services of worker(s) known to be without lawful status.

4 Enforcement Trends Shift from high profile worker raids to employer sanctions I-9 audits more common Over 3,000 in 2012 Only 250 audits in company managers arrested and almost $13 million in fines issued Discrimination charges also investigated ( document abuse primarily)

5 Immigration Audits and Investigations Department of Homeland Security, Immigration and Customs Enforcement (ICE) Enforces the Immigration & Nationality Act Performs I-9 audits Conducts worksite investigations/raids for undocumented workers & employers who knowingly employ them

6 Form I-9: Proving Employment Eligibility IRCA requires completion of a Form I-9 for all employees hired after 11/6/1986. The employer must attest on the Form I-9 that it has examined an employee's work authorization and identity documentation, verifying his or her ability to work in the U.S. List of acceptable documents is provided by the government.

7 I-9 Audit: Notice of Inspection Gives employer at least 3 days to provide I-9 forms for all employees I-9 review site/deadline may be negotiable Payroll records frequently requested

8 I-9 Audit: Results of Audit Notice of Suspect Documents Opportunity to correct technical I-9 errors Notice of Intent to Fine

9 Local Worksite Enforcement Trends ICE agents may work with local police departments. Employees may be contacted by ICE at home or when leaving work for questioning. Identity theft issues common.

10 New Form I-9 New Form I-9, Edition date 03/08/2013 Must be used beginning May 7, 2013 for all new hires and reverifications Can be used immediately New Form is longer, has more detailed instructions, new data fields New Handbook for Employers (M-274) also available at Pay special attention to name change/identification change guidance on pg

11 New Form I-9 New data fields Employee phone, optional Passport information in Section 1, regardless of documentation presented in Section 2 Still no easy solution for remote hires Electronic I-94 documents could be problematic

12 Compliance Strategies Review and begin using the new Form I-9 as soon as possible. Create and maintain up-to-date and uniform policy on employment verification procedures and social security number mismatch notice response. Train human resources and hiring personnel on employment authorization, immigration, and discrimination rules.

13 Compliance Strategies Have protocols in place for dealing with visits/investigations by government agencies. Maintain reminder system to alert employee regarding upcoming reverification obligations.

14 Compliance Strategies Annual internal audit of I-9 records and biennial audit by external auditor advised. Include I-9 related provisions in service contracts.

15 Immigration Related Hiring & Retention Challenges Employers still facing hiring challenges in some positions/industries. U.S. STEM degree programs deficiencies Current immigration system makes hiring foreign nationals frequently impossible or impractical U.S. companies must compete for best and brightest on a global level

16 H-1B Worker Issues H-1B visa is the most common (and usually the only) visa for foreign workers in professional positions. H-1B cap exceeded on April 5, 2013 within days of opening Employers will not be able to request new H-1B visas in most cases until April 1, 2014

17 H-1B Cap-Exempt cases can still be filed Common exemptions: Nonprofit institutes of higher education or affiliated nonprofit organizations. Government or nonprofit research organizations. Foreign nationals already working in H-1B status.

18 Low or Unskilled Work Visa Challenges H-2B temporary work visa program Also capped Regulatory changes common The Immigration Service stopped processing H-2B petitions this spring due to litigation No visa category for low skilled, temporary but yearround workers

19 Green Card Realities Employment based green card numbers backlogged in most categories Indian citizens with bachelor's degrees will wait decades PERM labor certification process complicated, risky, costly 37% audited ~20% denied Canada, Australia offer fast, predictable permanent residence and citizenship opportunities

20 Gang of Eight Immigration Bill Increased border security Changes to H-1B program Would allow undocumented workers full spectrum of remedies/actions (reversing Hoffman Plastics) Mandatory E-Verify

21 E-Verify Program E-Verify is an internet-based program that allows U.S. employers to electronically verify the work authorization of employees. Participating employers must use the Program for all employees; selective use of the Program is prohibited. Employers may not use the Program to pre-screen job applicants. Imposes additional I-9 obligations on employers

22 Gang of Eight Immigration Bill Legalization program New W visa category for low skilled workers Increased number of H-1B and employment based green card spots Shifting of resources to STEM degree holders Start up visa (EB-6) for foreign entrepreneurs

23 Immigration Reform Results Larger pool of legal workers More attractive green card options for retaining/recruiting Additional hurdles for some visa categories Get ready for E-Verify

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