ABC Webinar Series: I-9 9 and Worksite Immigration 2011 Compliance Update

Transcription

1 ABC Webinar Series: I-9 9 and Worksite Immigration 2011 Compliance Update By: Mary Pivec CONTINUING TO WALK THE I-9 TIGHTROPE IN 2011 Mary E. Pivec, Esq., Keller and Heckman LLP Washington, D.C. (202) pivec@khlaw.com Wednesday, July 13, :00 p.m. 3:30 p.m. (ET) Professional Credentials Mary E. Pivec is an Employment and Litigation partner with the firm of Keller and Heckman LLP in Washington, D.C., a law firm representing businesses in government regulatory law and litigation through offices in the U.S., Europe and China. Ms. Pivec s practice is concentrated in the fields of U.S. workplace law and immigration compliance. She represents employers exclusively in investigations and disputes with government agencies and prosecutors, labor unions, individual employees and classes of employees. Ms. Pivec s workplace immigration defense practice includes representation of employers in I-9, H-1B and H-2B, and anti-discrimination compliance audits conducted by U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Labor Wage and Hour (DOL/WH), and Special Counsel for Immigration Related Discrimination within the Civil Rights Division of the U.S. Department of Justice (DOJ). Ms. Pivec also represents employers in administrative and judicial appeals challenging civil money penalties, back pay and debarment orders arising out of agency compliance audits. Ms. Pivec s practice is also focused on representing employers in whistleblower matters arising under the 19 federal energy, environmental, financial fraud, food safety and consumer protection statutes enforced by the U.S. Department of Labor.

2 Professional Credentials Continued Fellow, College of Labor and Employment Lawyers Best Lawyers in America, Immigration (1990-Present) SuperLawyers Labor and Employment, DC (2007-Present) AV Peer Review Rating, Martindale Hubble Bar Licenses: Maryland, D.C. and Virginia Board Member, American Immigration Lawyers Association, , ; Co- Chair, American Immigration Bar Association Worksite Enforcement Conference; Co- Editor, AILA Guide to Worksite Enforcement and Criminal Compliance (2007) Immigration Chair, American Bar Association Section of Labor and Employment, J.D., U. Maryland School of Law (1981): M.L.A., Johns Hopkins U. (1977), B.A., Towson U. (1972) What We Will Cover Latest I-9 Compliance Advice from USCIS Latest E-Verify Enhancements ICE I-9 Audit Update OSC Anti-discrimination Actions Federal and State Legislative Developments Latest USCIS I-9 Compliance Guidance M-274 Employer Handbook and I-9 Central Website

3 General Tips for Completing I-9s Information recorded should be clear and readable The date entered in Section 2 as the date the employee began work for pay should match the date in the payroll records If the employer retains photocopies of the verification documents, the photocopies should be legible Abbreviations should be avoided unless widely used All applicable sections must be completed The most current version of the Form I-9 must be used Only the English version of the Form I-9 is permitted outside PR Timing Issues Time of completion for Section 1 o Previous versions advised at the time of hire o Current version advises that the employee may complete Section 1at any time between acceptance of a job offer and the first day of work for pay Time of completion for Section 2 o Previous versions advised within three business days of hire date o New version advises that the first day of employment is not counted o New version consistent with date for initiating E-Verify data entry Mergers, Acquisitions and Intercompany Transfers o Three day rule remains impractical o Business unit responsible for resolving pending E-Verify/TNCsnot addressed Section 1 Authorized Preparers o Only the employee may complete Section 1, with or without the assistance of a translator/preparer o Whoever assists the employee in completing Section 1 must complete the Preparer/Translator attestation o Completing all Section 1 fields is mandatory, except for the SSAN unless the employer is a federal contractor enrolled in E-Verify and the employee is assigned to a covered contract o The employee should record N/A in the expiration field of the immigration status verification section if the employee is a foreign worker with indefinite duration employment authorization Section 2 o Only one employer representative may complete o It is not acceptable for a notary public to view the employee s documents and not complete Section 1

4 Examining Documents Employers must examine the documents presented by the Employee and must accept any combination of acceptable documents that reasonably appear to be genuine and to relate to the employee. Although employers are not expected to be document experts, they must reject documents that do not reasonably appear to be genuine and ask for any other acceptable document(s) The standard used for determining whether a document is genuine is whether a reasonable person would know that the document is fraudulent Document Review Guidance Writes more than one last name in Section 1, but presents a document from the List of Acceptable Documents that has only one ofthose last names Ask the employee the reason for the difference in the names. If it reasonably appears to be genuine and to relate to the individual then it may be accepted. Attach a memo to the Form I-9 explaining the discrepancy. Presents a document from the List of Acceptable Documents in which his or her name is spelled slightly differently than the name he or she wrote in Section 1 Ask the employee the reason for the difference in spelling. If it reasonably appears to be genuine and to relate to the individual then it may be accepted. Ask employees to use their full legal name in Section 1. Ask the employee to do one of the following: correct Form I-9 and initial the change; provide a different document with the correct spelling; provide the employer with a corrected document. Document Review Guidance Provides a document in which the name the employee wrote in Section 1 is completely or substantially different from the name on the document Ask the employee the reason for the name change If the employee maintains that the name in Section 1 is his or her legal name and the employer is satisfied that the document reasonably appears to relate to the employee, the employer may accept the document. Attach a memo to the Form I-9 explaining the discrepancy. If the employee voluntarily provides proof of a name change, the employer may keep a copy of it with the memo. Provides a document that does not reasonably appear to be genuine and/or to relate to the individual or if he or she cannot present other documents to satisfy the requirements of Form I-9 The employer may terminate employment.

5 Imaging and Retaining Forms I-9 Any electronic recordkeeping, attestation and retention system is acceptable, provided the system complies with DHS standards o Business process must be available for inspection by ICE o Software must contain a security feature that captures and retains individual identification data in connections with any modification of the stored record o Alteration, loss or erasure of an electronic record exposes an employer to allegations of document tampering o DHS currently has no software certification standards or program making it difficult to evaluate whether vendor software meets DHS compliance requirements Retention obligation applies only to pages of the Form I-9 containing data entry not the instructions or list of acceptable documents Auditing and Correcting I-9 s Updating and Correcting I-9s The best way to correct the form is to o draw a line through the incorrect information o enter the correct information o initial and date your correction If an employer has made changes on a Form I-9 using correction fluid, USCIS recommends they attach a signed and dated note to the corrected Forms I-9 explaining what happened A new Form I-9 can be completed if major errors (such as entire sections being left blank or Section 2 being completed based on unacceptable documents) need to be corrected o A note should be included in the file regarding the reason the employer made changes to an existing Form I-9 or completed a new Form I-9

6 Updating and Correcting Forms I-9 No update is required solely because an employee changes his or her name unless the employer in enrolled in E-Verify o USCIS Recommends that employers maintain correct information on Forms I-9 and note any name changes in Section 3 to avoid being charged with a missing I-9 by ICE based on discrepancies between the names of employees on your current payroll and names in your I-9 inventory Employer representatives may only correct errors discovered in Section 2 or 3 of the Form I-9; the employee must correct errors discovered in Section 1 Only the employer representative who viewed the original verification documents may complete and/or correct information entered in Section 2 E-Verify Update E-Verify Update New Employee Self-Check Procedure o Requires employee to pass identity verification check to obtain verification o Employers are prohibited from requiring Self-Check Verification results as a condition of employment New Employer Interface June 12, 2011 o Effective June 12, 2011, employers authorized to enter future hire date (i.e., date the employee will begin work for pay) within next 365 days E-Verify case created. If the hire date changes after the case creation date, no additional action required in E-Verify. The paper I-9 requires correction. o Drop down document verification menus synced to Section 1 citizenship status attestation E-Verify Ride program photo tool extended to include not only permanent residency cards, and passports but also DL verification (DL or permit). o MS pilot state.

7 SSA No Match Letters and Related Identify Theft Notifications No Match Notice - Best Practices Develop and maintain a written policy for responding to no match inquiries Review I-9, W-4 and payroll records relating to named employees to rule out benign causes for reported discrepancy including typographical errors, name changes, and inverted surnames; correct employer records and notify government of correction Notify employee if no-match discrepancy cannot be resolved and provide a reasonable period for employee resolution Correct existing I-9 Forms to reflect new information provided by employees, or prepare new Form I-9s for subject employees, provided the employer is satisfied that the new document(s) relate to the employees in question Terminate employee if a reported discrepancy remains unresolved and the employee cannot complete a new I-9 with independently acceptable identity and work eligibility documents ICE Audit Update

8 ICE Audit Protocol The administrative inspection or audit process begins with the service of a NOI by an ICE agent (generally in person), which forces the production of a company s Form I-9s. NOI will generally include an additional request for supporting documentation, which is often limited to a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses, although some Special Agent In Charge offices may even request Social Security no-match letters, manager information, and copies of compliance polices. Forensic Auditor inspects the Form I-9s for compliance. When technical or procedural violations are found, an employer is given ten (10) business days to make corrections; employers are not provided with an opportunity to correct substantive violations. Section 1 Refresher Common Section 1 Errors Employee fails to print name Substantive Error Employee fails to print maiden name, address or date of birth Technical Error Employee fails to record A number if h/she checks LPR status Substantive Error (unless recorded in Section 2 or provided in legible photocopy of retained and attached verification document) Employee fails to record A number if h/she checks alien authorized to work until Substantive Error (unless recorded in Section 2 or provided in legible photocopy of retained and attached verification document) Employee fails to sign Section 1 Substantive Error Employee fails to date Section 1 Technical Error Not completed by the end of the first work day for pay Technical Error post 9/30/96 Failing to check the box indicating immigration/citizenship status Substantive Error Preparer/Translator block - name, address, signature and/or date left blank Technical Error

9 Section 2 Refresher Sample EAD Document Common Section 2 Errors No acceptable List A, B or C documents recorded Substantive Error No document title, issuing authority, numbers or expiration date recorded Substantive Error(unless recorded in Section 2 or provided in legible photocopy of retained and attached verification document) No hire date recorded Technical Error No employer representative signature Substantive Error No employer representative printed name Technical Error Employer representative job title not recorded Technical Error No business title, name or address recorded Technical Error Employer representative attestation date not recorded Technical Error Section 2 not completed by the third business day following the first day of work for pay, or, if hired for less than three days, at the time the employee begins work for pay Technical Error (unless completion due prior to 9/30/96)

10 Section 3 Refresher Common Section 3 Errors Improper verification document recorded Substantive Error Missing document title, number or expiration date for the acceptable document presented - Substantive Error (unless provided in legible photocopy of retained and attached verification document) No date of rehire, if applicable Technical Error No new name, if applicable Substantive Error No employer signature or date Substantive Error Completing Section 3 after the employee s work authorization has expired Substantive Error Current ICE Audit & Fine Procedures Declines to grant extensions of the 3-day rule for I-9 production Declines to apply good faith defense to I-9 forms completed after ICE serves NOI Disclaims 3 day notice obligation if I-9s demanded by criminal warrant Generally requires production of Form I-9s for all active employees and often for terminated employees within the retention period Finds bad faith based solely on a high number of technical violations related to unauthorized workers Assesses substantive violation fines for I-9s completed outside the 3-day period, but years prior to service of NOI contrary to prior agency guidance

11 % of I-9 Forms with Errors Standard Fine Amounts Substantive & Uncorrected Technical Violations First Offense $110- $1,100 Second Offense $110- $1,100 Third Offense $110- $1, % $110 $550 $1, % $275 $650 $1, % $440 $750 $1, % $605 $850 $1, % $770 $950 $1,100 50% or more $935 $1,100 $1,100 Standard Fine Amounts Knowing Hire & Continuing to Employ Violations % of UW s in Workforce First Tier $375- $3,200 Second Tier $3,200- $6,500 Third Tier $4,300 $16, % $375 $3,200 $4, % $845 $3,750 $6, % $1315 $4,300 $8, % $1,785 $4,850 $10, % $2,255 $5,400 $12,100 50% or more $2,725 $5,950 $14,050 DHS/ICE CMP Enhancement Matrix Factor Aggravating Mitigating Neutral Business Size +5% -%5 +/-0% Good Faith +5% -%5 +/-0% Seriousness +5% -%5 +/-0% Unauthorized Aliens +5% -%5 +/-0% History +5% -%5 +/-0% Cumulative Adjustment +25% -%25 +/-0%

12 Immigration-Related Discrimination Claims OSC Guidance and Enforcement Investigates employers charged with over-zealous enforcement of I-9 and E-Verify requirements In recent years, has increased pattern and practice investigations resolved by settlements involving large back pay funds, large civil money penalties, and ongoing monitoring and compliance obligations Seeks employee hotline complaints reporting perceived improper conduct in resolving No Match Letters Federal and State Legislation

13 The Legal Workforce Act Mandates employer use of E-Verify in phases, depending on size and class, following enactment date o 30 days for covered federal contractors o 6 months - 10,000 or more employees o 12 months to 10,000 employees o 18 months 20 to 499 employees o 2 years fewer than 20 employees o 3 years -farm workers Limits the employer E-Verify obligation to new hires only except for federal contractors who must verify current employees assigned to a covered federal contract; excludes responsibility for subcontractor compliance The Legal Workforce Act Exempts returning seasonal agricultural workers from E-Verify Provides telephone verification option for small employers lacking internet service Creates safe harbor defense for employers who use E-Verify and hire a worker based on an inaccurate eligibility confirmation Extends Form I-9 correction period from 10 to 30 days following notice from ICE Preserves availability of the good faith defense where E-Verify system down The Legal Workforce Act Limits availability of Sonny Bono good faith defense to de minimus I-9 technical/procedural errors Permits states and localities to pass licensing laws requiring participation in E-Verify (consistent with federal requirements) as approved by the Supreme Court in U.S. Chamber of Commerce v. Whiting, but prohibits non-federal laws purporting to punish employers for hiring undocumented workers Expands retention period for I-9s and E-verify receipts to 5 years from date of hire, or one year from date of termination, whichever isgreater Increases criminal penalties for use of false SSAN and PRA numbers, false I-9 attestations and improper use of E-Verify

14 2010 Arizona Illegal Immigration Enforcement Bill Expanded state worksite immigration enforcement measures adopted in 2007 Granted broad authority to police to investigate immigration status and detain suspected undocumented persons In 2010, U.S. Justice Department sued Arizona alleging federal pre-emption and violation of civil rights In April 2011, a three-judge panel on the 9th U.S. Circuit Court of Appeals sided with the Justice Department and against Arizona Gov. Jan Brewer, who signed Arizona's law last year Arizona is pursuing Supreme Court review South Carolina Illegal Immigration Reform Act Requires all state employers to register and participate in the E-Verify federal work authorization program subject to loss of state business license License includes an agency permit, certificate, approval, registration,charter, or similar form of authorization required by law for the purpose ofoperating a business in the state, as well as employment licenses, articles of organization, articles of incorporation, a certificate of partnership, a partnership registration, a certificate to transact business or similar forms of authorization issued by the South Carolina Secretary of State, and any transaction privilege tax license (Professional licenses are excluded) A private employer who knowingly or intentionally employs an unauthorized alien violates the private employer s licenses Upon receipt of a written and signed complaint against a privateemployer, or upon an investigation initiated by the director for good cause, if the director finds reasonable grounds exist that a private employer violated any of the provisions above, the director shall institute an investigation Employer s business license may be revoked upon conviction of third offense On June 23, 2011, DHS authorized employer release of E-Verify data report to SC Department of Labor, Licensing and Regulation in the course of astate compliance audit eliminating perceived violation of MOU prohibition of employer disclosure Georgia HB87 Partially Enjoined 6/28/11 Prohibits state and local law enforcement officers and officials from arresting, detaining or prosecuting anyone based upon sections 7 and 8 of HB 87 while injunction remains in effect. Section 7 allows law enforcement personnel to inquire about immigration status in questioning suspects in certain criminal investigations. Section 8 provides penalties against persons who, during the commission of a crime, knowingly transport or harbor illegal immigrants. o Speeding or driving without proper equipment could constitute a crime.)

15 Question and Answer Period