Labor and Employment 2013 Fall Conference Employment-Based Immigration Law and Procedures: Things I Hate About I-9 Saiko Y. McIvor, Dorsey & Whitney LLP Craig Peterson, Dorsey & Whitney LLP
Labor and Employment 2013 Fall Conference September 26, 2013 Employment-Based Immigration Law and Procedures: Things I Hate About I-9 Saiko Y. McIvor Craig Peterson Dorsey & Whitney LLP 1 U.S. Immigration Agencies U.S. Department of Homeland Security (DHS) U.S. Citizenship & Immigration Services (CIS) U.S. Customs & Border Protection (CBP) U.S. Immigration & Customs Enforcement (ICE) 2 Dorsey & Whitney LLP 2013 1
Immigration Reform & Control Act (IRCA) Requires employers to complete I-9 Intent is to limit hiring to individuals authorized to accept employment Simple process, but complications abound 3 IRCA Scope Covers any employment inside United States Location of employer and payroll function immaterial Effective November 6, 1986 employees hired before then need not be verified Protects citizens, permanent residents, asylees and refugees Not protected - foreign students, H-1B s, even though work authorized 4 Dorsey & Whitney LLP 2013 2
Affected Employees New Hires hired for any duration, even one day Current employees if: I-9 was not done or done incorrectly After merger/acquisition if audit reveals deficiencies (otherwise purchaser inherits problems) Temporary employment authorization expires (re-verify) 5 Affected Employees, cont d Re-hires previously completed I-9; new I-9 only needed if re-hire is more than 3 years following initial I-9 completion or temporary work authorization listed on initial I-9 expired 6 Dorsey & Whitney LLP 2013 3
I-9 Not Required Independent Contractors distinction between employee/independent contractor less clear here than for tax purposes Must be paid by contract employer Level of control exercised by employer vs contractor Use of contractor equipment vs employer equipment Employer not protected if it has reason to know contractor uses unauthorized aliens 7 Basic I-9 Process Employee completes Section 1 on or before first day of employment (but not prior to offer/acceptance) Employer completes Section 2 by end of 3rd day of employment (ok to complete same time as Section 1) Re-Verify employability prior to expiration of temporary work permission 8 Dorsey & Whitney LLP 2013 4
Common Mistakes Omitted information Blank social security number (write none ) Expiration date of temporary work permission Signatures and dates Legal status Information in wrong space Form not completed within time limits No tickler system for re-verifications 9 Clarifying I-9 Information Avoid document abuse requesting more or different documents If document does not appear genuine, or does not relate to individual, employer should inquire Employer responsible to ensure I-9 completed fully and properly If in doubt, accept document if reasonable, and attach memo detailing issue and resolution for later use 10 Dorsey & Whitney LLP 2013 5
Form I-9 Violations Inadvertent, procedural errors can produce fines Knowing, or reckless conduct can produce criminal prosecution Using temp or contract workers no shield, if reason to know these non-employees are unauthorized workers ICE commences investigation by issuing Notice of Inspection Practice tips for employers Comprehensive Form I-9 policy with scheduled reviews Supervisors and managers on-going training Regular audits and self-inspections Company policy prohibiting the hiring of undocumented workers Temp/contract labor written agreement requiring IRCA compliance Internal Form I-9 audit Good immigration attorney 11 Unlawful Employment of Foreign Nationals & The Monetary Penalties Prohibition on knowingly hiring or continued employment of individuals not authorized to work in the United States 1st Offense: $275 - $3,200 per unauthorized worker 2nd Offense: $2,200 - $5,500 per unauthorized worker After 2nd Offense: $3,300 - $11,000 per unauthorized worker Failure to properly complete, retain, and/or present Form I-9s for inspection by ICE $110 - $1,100 per each violation (each error is a separate violation) Good faith defense: If notified by ICE of technical violations, employer must cure the violation within 10 days. Defense does not protect an employer from pattern or practice violations Factors determining fine amounts: Size of the business; employer s good faith efforts to comply; seriousness of the violations; history of previous violations 12 Dorsey & Whitney LLP 2013 6
U.S. Immigration & Customs Enforcement (ICE) Agency U.S. Department of Homeland Security (DHS) Immigration Reform and Control Act of 1986 (IRCA) Introduced I-9 and employment authorization verification requirement Penalties for failure to verify authorization or keep records Has not prevented illegal immigration for employment (3 million undocumented workers led to passage of IRCA; now 10-12 million undocumented) Enforcement actions rose from 500 in FY 2008 to 2500 in FY 2010 Focus has shifted to Enforcement and Punishment The DHS position: Worksite enforcement should touch as many employers as possible. ICE Deputy Director K. C. Kibble, 2011 There has been a strategic shift in enforcement by focusing on employers that knowingly or recklessly hire illegal immigrants. Former DHS Secretary Michael Chertoff ICE is going to seek the highest-level charges it can get on anyone it encounters in a worksite operation or any other kind of illegal activity. ICE Spokeswoman, Pat A. Riley (October 2008) Companies that utilize cheap, illegal alien labor as a business model should be on notice. ICE is dramatically enhancing its enforcement efforts against employers that knowingly employ illegal aliens. Criminal indictments... are the future of worksite enforcement. Fmr. Ass. Secretary, ICE, Julie Myers 13 Criminal Bases of Prosecution Pattern or practice of knowingly hiring unauthorized workers - $3,000 per worker and up to 6 months jail Harboring, concealing, shielding from detection up to 10 years jail and $250,000 fine Use of false statements/documents 5 years/$250,000 Racketeer Influenced and Corrupt Organizations (RICO) 20 years/$250,000 14 Dorsey & Whitney LLP 2013 7
E-Verify IRCA s I-9 requirement didn t exactly put a stop to unauthorized employment IRCA passed with 3 million undocumented immigrants, legalized many Document/identity fraud easily perpetrated E-Verify was authorized as the Basic Pilot Program in 1996 as the I-9 limitations became evident 15 E-Verify Not a replacement for I-9, but a supplemental process Complete I-9 first, then enter information into E-Verify E-Verify electronically queries databases DHS database confirms immigration legal status Social Security Administration confirms social security number and name match 16 Dorsey & Whitney LLP 2013 8
E-Verify E-Verify does not change acceptable documents for I-9 purposes, except identity document must be a photo ID If EAD or permanent resident card presented, employer must retain a copy Cannot use E-Verify or I-9 to pre-screen applicants; use after hire Generally can E-Verify only new hires after enrolling in E-Verify 17 E-Verify Operation Submit query no later than 3rd business day after start of employment E-Verify either confirms, or issues further action notice (formerly tentative nonconfirmation ) If further action notice, employee must take matter up with non-confirming agency within 8 work days Employer may not terminate/suspend while FAN action is pending 18 Dorsey & Whitney LLP 2013 9
Multi-Site Employers May choose to enroll each site as E-verify site or selected sites 19 E-Verify Mandated Generally participation is voluntary enter a memorandum of understanding with DHS Federal contractors recent federal contracts have E-Verify clause requiring contractor to use E-Verify for new hires and existing employees working on the federal contract Applies to contracts of $150K or more, work inside the U.S. other than for goods commercially available off the shelf E-Verify clause transfers to many subcontracts as well, if for services or construction and worth $3K or more 20 Dorsey & Whitney LLP 2013 10
E-Verify Mandated Student visa (F-1) extensions of Optional Practical Training beyond 12 months for STEM graduates (17 add l months available) IRCA violators may be ordered by Office of Chief Administrative Hearing Officer (OCAHO) to use E-Verify 21 State Requirements All or Most Employers Alabama, Arizona, Georgia, Louisiana, Mississippi, N. Carolina, S. Carolina, Tennessee, Utah Public Employers and/or Contractors Florida, Indiana, Missouri, Nebraska, Oklahoma, Pennsylvania Public Employers Only Idaho, Virginia 22 Dorsey & Whitney LLP 2013 11
States, Cont d State Contractors Only Colorado, Minnesota Employers via Local or Municipal Law Michigan, New York, Oregon, Washington Law Rescinded or Expired California, Illinois, Rhode Island 23 24 Dorsey & Whitney LLP 2013 12
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27 valid UK passport with matching information 28 Dorsey & Whitney LLP 2013 14
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Labor and Employment 2013 Fall Conference Employment-Based Immigration Law and Procedures: Things I Hate About I-9 Speaker Bios Saiko Y. McIvor is a Senior Attorney in Dorsey s Labor and Employment Group and is based in our Minneapolis, Minnesota office. Ms. McIvor has 23 years of practice experience in employment-based immigration law. She is distinguished as "The Best Lawyers in America"(USnews, 2010), "Best Lawyers in Minnesota" (The Minnesota Monthly, 2010), and "Leading American Attorney" (American Research Corporation, 1997) in Immigration Law. She also has a corporate law background. Ms. McIvor represents corporate and individual clients in information technology, healthcare, finance, biotechnology, service, manufacturing, arts/entertaining, marketing/advertising, agribusiness, government, retail, academic, and legal sectors. Her practice area includes temporary and permanent U.S. visa applications, foreign work permits/visa applications, I-9 compliance training, and merger and acquisition-related counseling. Ms. McIvor has served two terms as the Chair of the Immigration Law Section, Minnesota State Bar Association, and is a frequent lecturer and author of publications on employment-based immigration subjects. Craig Peterson is an Attorney in Dorsey s Labor and Employment Group and is based in our Minneapolis, Minnesota office. Mr. Peterson focuses on business-related immigration matters, including both immigrant and non-immigrant filings. He works with all types of employers. Mr. Peterson routinely prepares H-1B, L-1, TN, O-1, P and other nonimmigrant visa applications. He also frequently assists employers in retaining valuable foreign talent through permanent labor certification, immigrant petitions and adjustment of status on behalf of foreign workers. Mr. Peterson also works frequently with individuals who may qualify to immigrate as individuals of extraordinary ability or in the U.S. national interest. Prior to joining Dorsey & Whitney LLP, he worked for over 10 years with a major research university on immigration issues affecting the institution, its academic departments and research units, its foreign students, staff and faculty.