Mary E. Pivec, Esq. Keller and Heckman LLP 1001 G Street N.W., Suite 500W Washington, D.C. 20001 202-434-4212 [email protected]www.khlaw.com Washington, D.C. ● Brussels ● San Francisco ● Shanghai The New I-9 Employment Verification Rules and the Future of Immigration Worksite Enforcement: Critical Issues to Know Presented Through the Progressive Business Conference February 17, 2009 by
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Mary E. Pivec, Esq.Keller and Heckman LLP
1001 G Street N.W., Suite 500WWashington, D.C. 20001
• Update on pending Form I-9 regulatory changes• Best Practices: Immigration and I-9 Compliance • Ten Most Serious I-9 Mistakes• Current Civil Money Penalties• Update on E-Verify and FAR E-Verify rule Update on
SSA No Match and DHS Safe Harbor Rule• Worksite Immigration Crimes and Penalties • Anticipating ICE enforcement actions• Preparing for potential worksite investigations
• Modify the Employee attestation in Section 1 to include a new immigration category (non-citizen national)
• Require (for the first time) that all verification documents be current (including USC passports, alien registration cards, and driver’s licenses); updating not required when USC passports, ARC’s and DL’s expire.
• Promulgate Immigration Compliance Policy (with sanctions for non-compliance), consistent with EEO laws, and disseminate companywide
• Train all managers and supervisors in requirements of the Compliance Policy, including need to report promptly concerns of alleged violations
• Ensure that all Employer representatives with responsibility for completing Section 2 receive basic I-9 and document fraud training and regular refresher training whenever changes occur in the regulations
• Institute Tip Line to report violations of Employer Immigration Compliance policy and promptly investigate and resolve all alleged violations
• Consider enrolling in SSNVS or E-Verify to deter immigration fraud
• Conduct annual I-9 compliance audits to ensure that all employees have a properly completed I-9 on file with the Employer; correct errors conspicuously and retain all prior I-9 forms and verification documents
Best Practices: Immigration and I-9 Compliance, cont’d
• After offer and acceptance, an Employer may provide the new hire with copy of proper Form I-9, instructions for completion and a list of acceptable documents – even if prior to scheduled start date – and may condition offer upon proper completion of the verification requirement, including SSNVS verification or E-Verify process
• Alternatively, if the individual was previously employed by the employer If employment terminated less than three years prior to proposed
new start date and candidate completed an I-9 during prior employment, employer may rely on properly completed prior I-9, unless the Employment Authorization document (other than US passport, I-551) has expired
Policy must be applied across-the-board within company, division, department, or job category to avoid claims of discriminatory treatment
Best Practices: Immigration and I-9 Compliance, cont’d
• Insist that Employee properly and fully complete and execute Section 1 before the close of the first day of employment Do not pre-complete Section 1 for the Employee If Employer representative assists Employee in translating or
completing Section 1, the representative must complete the Preparer/Translator attestation
Providing SSA# in Section 1 is optional, unless the Employer is participating in E-Verify
Currently, Employee must check one of three immigration status boxes. If s/he checks the second box, s/he must provide an A#. If s/he checks the third box, s/he must provide either an A# or Admission # and the expiration date of the work authorization document
Best Practices: Immigration and I-9 Compliance, cont’d
• Insist on seeing original documents only to verify identity and work eligibility
• Do not accept any document if the Employer has credible evidence that it is fake
• Pending finalization of Bush Administration I-9 regulation, accept expired USC passports and I-551 as Column A documents
• Verify consistency between information provided by Employee in Section 1 and information contained on the face of verification documents Compare names, birth dates, registration numbers,
expiration dates and likenesses; do not accept documents with discrepancies
Best Practices: Immigration and I-9 Compliance, cont’d
• Don’t accept receipt for application for initial or extended EAD• May accept and record receipt for new or replacement SSC for period
of 90 days• May accept and record receipt for replacement US birth certificate,
ARC, or EAD for period of 90 days• Record the identification number and expiration dates of all required
documents• Do not over-document, particularly based upon citizenship or national
origin status Do not insist on seeing ARC card, even if PR status claimed in Section 1 Do not insist on seeing DHS/EAD, even if EAD status claimed in Section 1
• Copy and retain verification documents along with I-9 documents• Fully complete and execute the Employer attestation in Section 2 no
later than 3 days following the start date of employment (recorded in Employer attestation)
Best Practices: Immigration and I-9 Compliance, cont’d
• Track future EAD expiration dates and notify employees of need for I-9 update no less than 120 days prior to expiration dates
• Remove any Employee who fails to properly update work authorization status as of prior expiration date
• Accept any document minimally acceptable to establish continuing work authorization, unless the employee has admitted facts and circumstances sufficient to place a reasonable employer on notice that the document may not be valid and/or not relate to the employee
• Maintain copies of all updates with the original I-9 form relating to the Employee
• Provide for secondary review off all I-9 forms prior to finalization of the I-9 hire or update procedure
1. Employer fails to require Employee to complete Section 1 of the Form I-9 prior to close of first day of employment, including completing the immigration status declaration and signing and dating the Employee attestation
2. Employee completes the entire Form I-9, including the Preparer/Translator attestation and the document identification section
3. Employer pre-completes Section 1 for the Employee
4. Employer fails to examine original documents – remote hire or otherwise
FAR Reg – Mandatory E-Verify • Within 30 days of award – must enroll and train all authorized personnel to input
EV data, monitor DHS responses in system, and respond to DHS directives• Within 90 days following first enrollment or date of contract award if
previously enrolled – must initiate E-Verify process for all existing employees directly engaged in covered federal contract. Pull I-9s of all incumbents If I-9s reveal expired documents (including expired USC passports), or
if expiration date cannot be ascertained, or no picture ID, or no social security account number provided in Part I
Meet with incumbents to complete new I-9 Picture IDs and SSANs required for EV
Initiate EV process• After the initial 90 days, contractors must initiate EV process
within 3 business days of hire or assignment to contract• All new hires of covered contractor/subcontractors
Complete I-9 process on first day and process through EV system
• Whether the Obama Administration will retain FAR E-Verify rule as is or in modified form
• Litigation on hold for 90 days• Implementation delayed until May 23, 2009• Vote to extend E-Verify due in early March 2009• Note – House and Senate Conferees deleted the E-
Verify mandate for contractors using Stimulus Funds – query if this is an indication the Obama Administration will withdraw Bush EO
• DHS views No Match data as key evidence of employer complicity in illegal hiring scheme
• DHS remains free to prosecute employers based on actual and/or constructive knowledge of unauthorized status – IFCO, Swift, Koch – painful examples
• DHS may obtain information regarding past No Match Letters from SSA if criminal investigation is opened through ex parte procedure or may seize such documents pursuant to criminal search and seizure warrant
• DHS could continue raids and stings in pursuit of evidence of immigration crimes
• Superceding Indictment against 5 IFCO Managers – including VP of HR, and HR Mgr – charging conspiracy to defraud US based on use of false SSA numbers, failure to investigate No Match Letters, deliberate underpayment of payroll taxes by encouraging holder of bad documents to claim excess dependents
• Required Elements Knowledge – Actual or constructive (reckless disregard
standard ) that a person has come to, entered, or remains in the U.S. in violation of law
Conduct – Harboring, concealing, or shielding from detection said person – thereby “substantially facilitating” the alien remaining in the U.S. illegally
Intent – To evade or avoid detection by law enforcement
• Maximum Imprisonment – 5 yr./10 yr. (commercial advantage/financial gain)
• Maximum Fine – greater of $250,000 or 2x financial gain
Evidence Found Sufficient to Sustain Harboring Charge
• Providing housing or transportation to unauthorized workers• Paying unauthorized workers through a third party or
subcontractor, or paying a contractor while knowing or recklessly disregarding that the contractor and/or his workers are undocumented
• Cashing checks made payable to 1099 subcontractors• Tipping off employees of ICE presence• Failing to investigate No Match letters (beware individual
letters and SSNVS no matches garnered by payroll software)• Accepting documents known to be fraudulent for I-9
purposes• Assisting employees in obtaining fraudulent documents
• Koch Foods • Swift & Company• George’s Processing, Inc. • Cargill/Quality Service Integrity, Inc.• Fresh Del Monte Produce• Pilgrim’s Pride• Agriprocessors• Howard Industries
Factors Suggesting Increased Risk of Ice Enforcement
• Complaints from local citizens and elected officials • Arrest and interrogation of unauthorized workers• Recent I-9 audit and Notice of Suspect Documents• Unresolved Social Security No-Match Letters• Prior INS/ICE NOIF or Warning Letter• Housing and transportation assistance• Identity fraud complaints• Union tips - employee abuse, underpayment of wages• Proximity to DHS staging facilities and task force units• Facilities in immigration backlash and/or 287(g) jurisdictions
• Government Agents are not your friends – whatever you say can be used against you – no need for Miranda warnings prior to arrest
• Use of wired confidential informants and sophisticated surveillance equipment are common – be suspicious of any individual who invites you to commit an immigration violation
• Reliance on terminated managers for labor violations and immigration conspiracy evidence common – immigration compliance policy and enforcement is best defense
• Any government agent visits to the worksite – regardless of reason given
• Any reporter visit to worksite inquiring about wages, working conditions, union activity or immigration issues
• Any employee or subcontractor request that you to do something illegal or shady, particularly relating to violating immigration, tax or employment laws