Immigration Worksite Enforcement

Transcription

1 L & H A LEON HAZANY & ASSOCIATES, APLC Immigration Worksite Enforcement Copyright 2009, Law Firm of Leon Hazany & Associates, A.P.L.C., All Rights Reserved

2 What Is Immigration Worksite Enforcement? Essentially Employers Compliance With U.S. Immigration Laws As They Pertain To The Employment Of Any Individual & The Government s Enforcement Of Those Laws 1. I-9 Procedures 2. E-Verify (Mandatory & Voluntary) 3. Immigration Options for Current and Prospective Employers

3 Who Does It Impact? Employers & Employees Employer Side Business Owners & Executives HR, Accounting, & Payroll Employees Anyone Responsible for Company Hiring Employee Side US Citizens Lawful Residents Lawful Immigrants Unlawful Immigrants

4 Employer Side Business Owners & Executives HR, Accounting, & Payroll Employees Anyone Responsible for Company Hiring What Impact? 1. Criminal Prosecution 2. Civil Penalties 3. Lawsuits

5 Employee Side What Impact? U.S. Citizens, Lawful Residents & Lawful Immigrants Wrongful Termination

6 Why Is This An Important Topic Immigration and Customs Enforcement (ICE) is dramatically increasing its worksite investigations and arrests. In FY 02, worksite arrests totaled 485. In FY 07, the number had surged to 4,077 Criminal prosecutions are increasing in connection with the raids Examples: September 2, 2008 Arcata CA. Sun Valley Flower Farms. 23 workers arrested July 23, workers arrested at Casa Fiesta Restaruatn Chain in Ohio Employers are now also being subject to serious criminal charges January 28, 2009: Owner of a constructions company operating in Alabama was charged in a three count federal indictment which included alien harboring and knowingly employing illegal aliens. The indictment also requested a forfeiture of all profits made from employing illegal aliens. The owner faces a maximum term of imprisonment of 10 years and a fine of $250,000. January 23, 2009: 7 IFCO Systems of North America managers were indicted on charges of harboring aliens and inducing illegal aliens to reside in the United States. The indictments arose from an ICE investigation into the plants employment practices. The company agreed to pay nearly $21 million in forfeitures and penalties. Each offense in the indictment carries a maximum punishment of up to five years in prison and a $250,000 fine.

7 1. I-9 Procedures Recent Changes New Form New Document Requirements On Jan. 30, 2009 USCIS delayed implementation of Changes until April 3, 2009

8 1. I-9 Procedures

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11 1. I-9 Procedures How Can I Protect Myself & My Business? I-9 Audit E-Verify (Voluntary)

12 2. E-Verify (Mandatory) What are the employer s obligations? Mandatory for Federal Contractors by May 21, The rule applies to al solicitations and contracts awarded as of May 21, What are federal contractor s responsibilities? oif a contractor has been awarded a federal contract prior to May 21, 2009, you are only required to use E-verify for new hires oany contractor who receives a contract on or after May 21, 2009 must enroll within 30 calendar days of the award date. oa contractor t has 90 days after enrollment to initiate the verification queries on its employees that wil work on the contract and all new employees. othe rule applies to subcontractors as well. oan employer participating in E-Verify must post the notice provided by the Department of Homeland Security indicating the company s participation in E-Verify Who is considered an employee working on the contract? oan employee assigned to a federal contract is defined as any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-verify oan employee is not considered to be directly performing work under the contract if their work consists primarily of indirect or overhead functions. oe-verify may only be used after a job offer has been extended to, and accepted by, an employee.

13 2. E-Verify (Voluntary) What are an employer s responsibilities who voluntarily participates in E-verify? oan employer must complete an I-9 with all relevant employee information including: Employee s name and date of birth Social Security Number Citizenship status A number or I-94 number (if applicable) Type of document provided on the I-9 form to establish authorization to work in the U.S. Proof of Identity o An employer may not pre-screen applicants using E-verify, but may initiate a query before a new hire s start date. oan employee should not face any adverse employment consequences based upon an employer s use of E-verify oemployers must post a notice advising employees of their use of E-verify oe-verify must be used for new hires only. It cannot be used for existing employees. oemployers must provide employees that receive an information mismatch with information about how to challenge the information. oif an employee decides to challenge the information mismatch, the employer must provide the person with a referral letter issued by E-verify that contains specific instructions and contact information. oan employee with a mismatch must be given eight (8) federal government work days to contact the appropriate federal agency. DANGERS OF VOLUNTARY E-VERIFY!!!!

14 3. Immigration Options for Current and Prospective Employers Non-Immigrant visas otemporary visas for business personnel H1-B Visa Specialty Occupations generally requiring at least a Bachelor s degree H-2 Temporary workers performing agricultural services or other temporary service or labor L visa Inter company transferee that his worked abroad for a parent, affiliate, or subsidiary of U.S. business that wishes to enter the United States to continue to work in a managerial or executive capacity. The employee may also possess specialized skills. O Visas Individuals of Extraordinary ability in the arts, sciences and business. Immigrant visas/permanent Residence oa U.S. employer may petition for the permanent residency of a prospective or current employee othree categories for employment based applications: EB-1: Individual with extraordinary ability EB-2: Individuals with advanced degree (Master s degree or Bachelor s degree plus 5 years of experience) or individuals of exceptional ability EB-3: Individuals with at least a Bachelor s degree or two years relevant experience

15 L & H A LEON HAZANY & ASSOCIATES, APLC CONTACT telephone: facsimile: (310) Wilshire Boulevard Suite 2600, 26 th Floor Los Angeles, CA (310) info@hazanylaw.com Copyright 2009 Law Firm of Leon Hazany And Associates, A.P.L.C.