Increased Immigration &
Worksite Enforcement:
Strategies and Solutions to
Weather the Perfect Storm
Elise A. Fialkowski
Kate Kalmykov
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia
1800 John F. Kennedy Blvd.,
Philadelphia, PA 19103
215.825.8600
www.klaskolaw.com
New York
17th
Floor
317 Madison Ave., Suite 1518
New York, NY 10017
212.796.8840
Elise A. Fialkowski, Esq.

Elise Fialkowski is a Partner at Klasko, Rulon, Stock & Seltzer, LLP and
she has been providing immigration assistance and solutions to leading
universities, research institutions, multinational corporations and individuals
for over 15 years.

Elise leads the firm’s worksite compliance group. Elise has particular
expertise in advising employers with regard to worksite compliance with the
Immigration Reform and Control Act including I-9 Employment Eligibility
verification, E-Verify and worksite enforcement issues. An active member of
the American Immigration Lawyers Association, Elise has served on AILA’s
E-Verify Liaison Committee and she is on the Executive Committee of its
Philadelphia Chapter as well as the Philadelphia USCIS Liaison Committee.

A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill,
(B.A.1987), Elise received her law degree from the Villanova University
School of Law (J.D., magna cum laude, 1991).
Klasko, Rulon, Stock & Seltzer, LLP
Kate Kalmykov, Esq.

Kate Kalmykov, an Associate in the Firm's New York City office, focuses her
practice on business immigration.

Kate regularly works with corporate clients, hospitals and universities on
providing creative immigration solutions to visa and work authorization
needs of foreign nationals including skilled workers, persons of
extraordinary ability, managers and executives, professionals, treaty
investors and traders, as well as corporate trainees.

Kate received her J.D. from the American University and is admitted to
practice in New York and New Jersey.

A member of the American Immigration Lawyers Association, Kate chairs
the New York CLE Committee and serves as Secretary of New York District
Office Liaison Committee.
Klasko, Rulon, Stock & Seltzer, LLP
Overview
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Increased I-9 Enforcement and Penalties
Criminal Enforcement and ICE
E-Verify and Data Mining
Information Sharing Agreements-USCIS, ICE and OSC
OSC Discrimination Claims
Fraud Detection and National Security (FDNS)
Investigations
Practical Strategies and Best Practices to Protect your
Company NOW
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
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Background–Form I-9
 Immigration
Reform and Control Act (“IRCA”) requires
employers to verify identity and employment eligibility of
employees hired after 11/6/86
 Section 1-Employee Information and Verification- must
be completed by the employee at the “time of hire” –1st
day of work
 Personal information
 Attestation as to status
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
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Background–Form I-9, cont’d
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Section 2-Employer Review and Verification- must be
completed by the employer within “3 business days of date
employment begins”
 Review Original documents that show identity and
employment eligibility
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List of Acceptable Documents – one document from List A or one
document from List B and one from List C
Do NOT accept more than is required or request specific documents
Record title, issuing date, authority, doc. no., expiration
Documents must appear to (1) be reasonably genuine and (2) relate to
the individual presenting them –Attestation
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement

Background–Form I-9, cont’d
3 – Updating and Verification (or new Form I-9)
 For time-limited work authorization
 Reverify on or before expiration of work authorization –
documentation of continued work authorization
 Can NOT ask for a specific document
 Establish “tickler” system – at least 120 days notice
 Do NOT reverify an expired US passport or Permanent
Resident card
 Section
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
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New ICE Worksite Compliance Strategy
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Raid v. audit/investigation - NOI
Focus on Employers
Pledge to continue active criminal prosecution
of employers
Pledge to issue detailed investigation protocols
Support E-Verify/system improvements
Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
(cont’d)

ICE Implements Strategy – Since 1/2009
More than 3200 employers audited
 Over $50 million fines
 Average employer fine $110,000
 180 business owners, managers, supervisors
criminally charged
 225 companies debarred from federal contracts
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Klasko, Rulon, Stock & Seltzer, LLP
Increased I-9 Enforcement
(cont’d)
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Calculation of penalties-12/09 Fine Guidance
Issued
 Penalty
knowing hire/employ: $375-$16,000 per
employee
 Penalty substantive/technical violations: $110 to $1,100
per violation
 “Violation percentage” and base fine amount
 Enhancement/Mitigation Factors
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Example
 Abercrombie
Klasko, Rulon, Stock & Seltzer, LLP
> $1 million fine 09/10
Increased OSC Enforcement
Non-Discrimination in I-9 Process
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OSC-Office of Special Counsel for Immigration Related
Unfair Employment Practices created w/IRCA
Enforces citizenship/immigration status discrimination,
national origin discrimination, document abuse and
retaliation
Civil penalties:
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Citizenship/national origin discrimination $374-16,000
Document abuse -$110-$1,100
Back-pay & injunctive relief
Klasko, Rulon, Stock & Seltzer, LLP
Increased OSC Enforcement
Non-Discrimination in I-9 Process
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Recent increased enforcement
(cont’d)
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Catholic Healthcare West – 11/10 largest ever civil penalty
>$257,000
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John Jay College- OSC sought $1100 per employee (settled 2010)
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Hoover Vacuum 2010 settlement-$10,200 (expired green card)
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Garland Sales, Inc.-7/8/10 suit alleges different and greater reqsnon-US Citizens/retaliation
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Maricopa Community College-8/30/10 suit alleges college imposed
greater requirements on at least 247 non-US citizens
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Other actions – broad range businesses-landscaping, pool, beauty
Klasko, Rulon, Stock & Seltzer, LLP
Avoiding Discrimination Claims
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Immigration law (IRCA) prohibits discrimination in hiring and
discharging based on national origin or citizenship status
Do Not use the I-9 process to pre-screen for hiring
Only I-9 after written offer or on first day
DO show the full list of acceptable documents
Do NOT request specific documents
Do NOT require more/different documentation for noncitizens/those appearing foreign
Do NOT require more than 1 List A or List B &C
combination
Klasko, Rulon, Stock & Seltzer, LLP
Simple One Page Form?
Klasko, Rulon, Stock & Seltzer, LLP
Audited I-9
Klasko, Rulon, Stock & Seltzer, LLP
ICE – I-9 Best Practices
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Written I-9 policy
Internal compliance & training program
Require I-9 process only by those trained
Secondary review for each I-9
Annual I-9 audits by external auditing firm or trained person
not involved in I-9 process
Protocol to respond to tips/information/constructive
knowledge
Polices/procedures safeguard against discrimination incl.
training
Maintain copies of documents
(E-Verify/SSNVS)
Klasko, Rulon, Stock & Seltzer, LLP
Electronic I-9 Program
Many providers
 Abercrombie & Fitch
 Do NOT have to use E-Verify but many provide
link should desire
 USCIS reports they are developing their own
Electronic I-9
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Klasko, Rulon, Stock & Seltzer, LLP
Electronic I-9 Program
(cont’d)
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Benefits vary depending upon provider and
functionality of program
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Time-saving: data does not have to be reentered for E-Verify
Alerts as to missing fields, inconsistent information and dates
Tickler system for reverification
Links to HR system
Tools to easily purge I-9s consistent with retention
requirements
Paperless “green option” — electronic signature, electronic
retention and scanning
Klasko, Rulon, Stock & Seltzer, LLP
Electronic I-9 Program
(cont’d)
 Help
features/pop-ups to assist with process/explain
documents
 Reminder emails to designated HR staff
 Customization-configured to company’s business
processes
 Immediate updates with changes in Forms/policy
 Support for program/E-Verify
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance Issues
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The Basics
 Electronic
 Checks
employment eligibility verification system
I-9 information against SSA and DHS databases
 Voluntary
unless required by state law or federal
contractor rule
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E-Verify required by State law
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All employers: AZ, MS, UT, SC*
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Contractors: CO, GA, MN, MS, MO, NB, OK, RI, SC, UT
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Public employers: AZ, GA, MN, MS, MO, NB, NC, OK, RI, SC, UT, VA
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance-Is Enrollment Required?
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Federal Contractor Rule- “contractors” and
“subcontractors” required to enroll
(cont’d)
 Contractors
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Contract must be issued after 9/8/09 or amended IDIQ contract
Must be Acquisition Contract subject to FAR w/performance longer
than 120 days and value above $100,000
Contract must include “E-Verify clause”
 Subcontractors
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Subcontract must flow from prime contract with E-Verify clause
Only for subcontracts for Services or Construction w/value over
$3,000
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance
Federal Contractor Rule
(cont’d)
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General rule
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Requires E-Verify query of:
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All new hires, and
All existing employees assigned to the contract, or
180 day option for all existing employees
Exemptions university
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May opt to only verify:
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New hires assigned to contract, and
Existing employees assigned to contract
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance
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Main Employer Responsibilities – MOU
(cont’d)
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Post notices
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Agree to visits by ICE and/or designees
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Attach results to Form I-9 and retain for same time as form
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Rebuttable presumption of compliance if confirmation is obtained
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Notify DHS if continues to employ following non-confirmation (civil
penalties $550-$1,100 for failure to notify)
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If continued employment after Final Non-Confirmation a
rebuttable presumption of violation of INA § 274A(a)(1)(A) is
created
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Can only leave with 30 days notice
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance
General Guidelines
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Not a substitute for I-9 compliance
Does not provide protection against worksite
enforcement
Cannot be used to pre-screen
Can only be used to verify eligibility of newly hired
employees unless federal contractor
Queries must be conducted within 3 days after hire
List B documents must have a photo
Must copy green card, EAD and passport
Klasko, Rulon, Stock & Seltzer, LLP
Verification of Eligibility
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What you need:
 Information
from Section 1 and 2 from the Form I-9
 Identification document provided from List “B” must
contain a photograph
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Results
 Confirmation
 Tentative
Non-Confirmation
 Final Non-Confirmation
Klasko, Rulon, Stock & Seltzer, LLP
Advantages of Using E-Verify
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Rebuttable presumption of compliance if
confirmation is obtained
Meatpacking case – no corporate fines for 1,000+
unauthorized workers
 Swift
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Allows employer to query system re validity of
documentation
Saves time/training by identifying unauthorized
workers prior to no-match
17 month STEM extension
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance
Disadvantages of Using E-Verify
(cont’d)
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Problems with underlying databases
Limited to new hires (except federal contractors)
No formal appeals process for non-confirmations
Additional HR and company time for process in
addition to I-9
Access to I-9s and related records
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Compliance
Data Mining & Data Sharing
(cont’d)
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Memorandum of Agreement- MOA
 12/08
USCIS MOA with ICE
 3/10 USCIS MOA with Office of Special Counsel (OSC)
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Data mining/audits
 Compliance
Tracking & Monitoring System, staff
 Examples: completion w/i time-line, terminate TNC,
failure notify FNC, selective use, fraudulent use, etc.
 Referral to ICE and OSC
Klasko, Rulon, Stock & Seltzer, LLP
Practical I-9 and E-Verify
Compliance Considerations
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Audit of older I-9s
I-9 issues with existing employees under Federal
Contractor Rule / choosing among the options
Tracking employees who are on a contract
Who conducts queries/handles non-confirmations
I-9 and E-Verify policies
Training plan—including non-discrimination training
Electronic I-9 program
Klasko, Rulon, Stock & Seltzer, LLP
H-1B LCA Audits
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Increased DOL enforcement – Wage and Hour
division
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Civil fines, back pay and debarment
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Criminal enforcement
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site Visits
Background
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Visits (generally unannounced) to employers who
have filed or have approved H-1Bs or other
petitions
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USCIS announced at least 20,000 this year
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Conducted by Fraud Detection and National
Security Unit (FDNS) officers or contractors hired
by FDNS
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site Visit
The Mechanics
Unannounced, scripted interview
 Will ask to see signatory
 Verify information in H-1B petition from
employer
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Business operations, locations, employees
 Information about H-1B employee including title,
job duties, credentials, salary work location
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Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site Visit
The Mechanics
(cont’d)
Photograph facility
 Tour facility, department or workplace
 May request paystubs/W-2s, financials or
job description, resumes, etc.
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Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site Visit
The Mechanics
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Generally will ask to see employee
(cont’d)
Verify position, title, duties, salary, location and
requirements
 Whether employee paid/reimbursed any money
related to H-1B
 Photo ID
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May ask to see supervisor or other
employees
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site Visit
What do we do if we are visited by
an Investigator?
Appoint a trained, designed company
representative and backup
 Request identification
 Lead to a conference room or neutral space
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Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site Visit
What do we do if we are visited by
an Investigator?
(cont’d)
Respond to questions – don’t guess
 Detailed written notes
 Immigration/in-house
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Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site
How do we prepare?
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Inform staff of USCIS visits
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Appoint a trained, designated company
representative with appropriate back-up
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Maintain immigration documents in central
location
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Site
How do we prepare?
(cont’d)
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Have immigration counsel’s contact information
handy in case problems arise
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Educate all H-1B employees about the possibility
that they will have to meet with FDNS investors
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Conduct periodic internal audits of H-1Bs
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Regularly train personnel on H-1B regulations and
requirements
Klasko, Rulon, Stock & Seltzer, LLP
Links

The Form I-9:
http://www.uscis.gov/files/form/i-9.pdf
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The M-274 Handbook for Employers:
http://www.uscis.gov/files/form/m-274.pdf
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
For further information or to request
a on-site presentation, please contact:
Elise A. Fialkowski, Esq.
Kate Kalmykov, Esq.
Tele: 215.825.8647
Tele: 212.796.8856
Fax: 215.825.8699
Fax: 212.297.1799
E-mail: efialkowski@klaskolaw.com
E-mail: kkalmykov@klaskolaw.com
Visit us online:
www.klaskolaw.com
www.worksite-compliance.com
http://blog.klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP