You don't have to employ an "Alien" to be in trouble with USCIS and ICE Issues in maintaining I-9 forms for U.S. Employers Presented by Nalini S. Mahadevan.

You don't have to employ an "Alien" to be in trouble with

USCIS and ICE Issues in maintaining I-9 forms for U.S.

Employers

Presented by

Nalini S. Mahadevannmahadevan@lowenbauml

aw.com314-746-4860

Diane E. Metzgerdmetzger@lowenbaumla

w.com314-746-4802

WHO IS THE ALIEN?

Historical Background

The Immigration Control and Reform Act of 1986

Purpose: to ensure that only work authorized individuals are hired

Achieve this goal by requiring employment verification and imposing employer sanctions

I-9 Employment Eligibility Verification Form requires employers to attest to their employees’ work authorization

Who are the players? U.S. Citizenship and Immigration Services

(USCIS) www.uscis.gov U.S. Immigration and Customs

Enforcement (ICE) www.ice.gov U.S. Department of Justice, Civil Rights

Division, Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) www.osc.gov

THE EMPLOYER

USCISI-9/E-VERIFY

ADMIN

ICEAUDITS I-9

CHECKS WORKER STATUS

OSCINVESTIGATES

DISCRIMINATION

The Key Players

MO STATE

YOURCLIENT

USCIS I-9 and E-verify I-9 form is for the collection of identity

and work authorization documents All employers Complete I-9 on 1st day of work Keep for 3 years from date of employment -or- For 1 year after worker leaves

Whichever is later

Hiring caveats Employers must not refuse to hire anyone

(for immigration/status reasons) who can show identity documents and valid work authorization

Employers cannot ask for particular documents

I-9 applies to all new hires after Nov. 6, 1986. A few exceptions

Avoid “citizen only” hiring policies

Hiring and Firing Decisions Base all firing decisions on performance

and/or behavior rather than: Appearance Accent Name Citizenship status

Likewise, do not make hiring decisions based on these parameters

E-Verify What is E-Verify?

Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States.

http://www.dhs.gov/e-verify When and how to use E-Verify

Complete after hiring Not before hiring as a pre-screening tool Don’t ask prospective employee to self verify before

job offer Not mandatory now, except under certain

circumstances according to State Laws

ICE Audits conducted of I-9 forms

After information received from Local law enforcement (J & J Supply Company) Complaint from worker (U.C.-San Diego Medical

Center) Whistleblower or information received by ICE (OSC

Complaint Form)

Why do we care? Penalties and forfeiture

OSC Investigates complaints of discrimination

by workers What would you do? Examples

(See OSC handout)

Example 1: Your Crew Boss catches you before you

start interviewing people for an open position.

He says, “Find out if those two near the door have their ‘green cards’ before you waste your time.”

If you do this, did you discriminate in hiring?

Example 2: After hearing about the penalties for

hiring undocumented workers, the CEO of your company wants to ensure that only work authorized individuals are hired.

The CEO issues a memo stating, “Please be careful when hiring people who look like they crossed the border illegally.”

Has the CEO committed National Origin discrimination?

Example 3: The rainy season caused your crop yield to

be less than expected, so you are forced to let some of your farm workers go.

Your choices are to either let go either Hector (a lawful permanent resident) or Jose (an asylee with a temporary work permit).

You chose to let go Jose because he only has a temporary work permit.

Have you committed citizenship status discrimination?

Example 4: You gladly hire Lily who gained fashion

production experience in Taiwan. When Lily hands you a California driver’s

license and an unrestricted Social Security card to complete the Form I-9, you are surprised.

You ask Lily to instead provide a document issued instead by DHS.

Have you acted lawfully?

Document abuse?

Tips and Best Practices “But it’s just a 2 page form…” Common mistakes Unforeseen discriminationpitfalls

I-9 Discrimination pitfalls Consider completing the I-9 only after job offer

has been made Don’t ask for a particular document Don’t ask for more documents than required Don’t reject a document that looks genuine Don’t reject a document because it has a future

expiration date Don’t make “blanket” decisions to hire only

U.S. workers Do use the same procedure for all employees

A Hiring “Don’t”

E-Verify Discrimination pitfalls Do use E-Verify for all new hires if your

company has signed up, or if you are required to do so by State laws

Don’t “pre-screen” employees for verification Don’t ask an employee to provide an E-Verify

Self-Check report Don’t go back and “double check” a current

employee’s employment authorization Don’t assume that a “TNC” means the

employee is illegal or not work authorized

ICE EnforcementICE Press Release 04/20/06

“[W]hen we find those employers who don't want to do the right thing, we're going to target our criminal efforts and bring all the criminal statutes that we can to bear against them. We've learned all too well, from watching the old INS, that just a small fine or a slap on the wrist is not a deterrent to businesses who want to violate our work site enforcement laws. That's the reason that we see more robust criminal cases built against negligent employers blatantly violating the law as a much stronger deterrent. The prospect of 10 years in prison carries much sharper teeth than just a small fine.”

- Julie Myers, former Assistant Secretary for ICE Enforcement Press

http://www.dhs.gov/xnews/releases/press_release_0892.shtm

ICE Enforcement: The Facts I-9 Audit and Notice of Inspection 3 days notice to employers before

inspection of I-9 Forms Penalties: both Civil and Criminal Penalties for both actual knowledge and

constructive knowledge of violations “Intentional avoidance” of I-9 rules

ICE Enforcement: The Figures Nationally in Fiscal Year (FY) 2011, ICE:

Conducted 2,496 I-9 audits Initiated 3,291 worksite enforcement

cases Criminally arrested 221 employers Issued 385 Final Orders for

$10,463,987 in fines Debarred 115 individuals and 97

businesses, compared to 0 individuals and 0 businesses in FY 2008.

ICE Fines in Previous Years

What if I don’t comply? ICE has increased its audits… a lot Failure to properly complete, retain, or

make the I-9 available to DHS, fine ranges from $110.00 to $1,100.00 per violation

Knowingly hire or continue to employ an illegal worker 1st offense- $375.00 to $3,200.00 2nd offense- $3,200.00 to $6,500.00 3rd+ offense- $4,300.00 to $11,000.00

Fines are per violation/per worker!

How do you look in orange?

On March 21, 2011, a St. Louis woman was sentenced to one year in prison followed by a six-month term of home confinement and two years of supervision

Charges: transporting, harboring and hiring illegal aliens to work at the Chinese restaurant she managed.

Other penalties: Authorities seized a 2008 Highlander, a 2005 Chevrolet passenger van, $34,000 in cash, and real estate worth more than $350,000 was also ordered forfeited.

http://www.ice.gov/news/releases/1103/110322stlouis.htm

Another twist: Marriage and Visa FraudAnother interesting discovery during the

raid…The woman’s uncle was paid by the

woman and her father to travel to China to marry a Chinese woman for the sole purpose of obtaining U.S. visas for the woman and her two children.

In exchange for the U.S. visas, the Chinese woman and her two children were bound to work for the woman and her father in the United States for three years each.

The visa applications were denied.

J & J Supply Inc. The owner of J & J Supply Inc., drove five of his

illegal alien employees in his 2011 Toyota Highlander to the Mexican Consulate in Kansas City to obtain Mexican Consular identification cards.

On his return trip, he was stopped for speeding in St. Charles County.

It was found that during a 12-month period, the company employed 10 or more illegal aliens

The company had to forfeit $150,000 and the 2011 Toyota Highlander used to facilitate the illegal activity. The company also received one year of probation.

University of California San Diego Medical Center On January 4, 2012, the Justice Department

reached an agreement with the University of California San Diego Medical Center, resolving a complaint filed on Dec. 6, 2011.

The complaint alleged that the medical center subjected newly hired non-U.S. citizens to excessive documentation requirements.

More facts to the case…

The medical center agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel, and work with government officials to ensure future compliance.     

Krispy Kreme Tip from the local sheriff’s office that Krispy

Kreme was employing illegal aliens led to an I-9 audit

The I-9 audit confirmed this, and in Sept. 2007, a Notice of Intent to Fine was issued

In July 2009, a settlement was reached with the Krispy Kreme Corporation for $40,000

It had 25 unauthorized workers anddid not have proper I-9’s for all of its workers

Abercrombie & Fitch A November 2008 I-9 inspection of A & F’s

retail stores in Michigan uncovered numerous technology-related deficiencies in A & F’s electronic I-9 verification system.

No “bad faith” here, but still had to pay more than a $1 million fine.

“Employers are responsible not only for the people they hire, but also for the internal systems they choose to utilize to manage their employment process…”- Special Agent Brian Moskowitz

What’s an Employer to Do?

Review the company’s current I-9 practices Consider performing an internal I-9 audit Consider the use of E-Verify Be vigilant when utilizing third parties to supply

employees Be especially vigilant in certain industries, but no

industry is safe!

Thank you!Questions and Answers