Recent Developments in
Employment-Based Immigration
for Corporate Counsel
Elise Fialkowski, Esq.
Theodore Murphy, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia
New York
1800 JFK Blvd. Suite 1700
Philadelphia, PA 19103
215.825.8600
www.klaskolaw.com
317 Madison Ave. Suite 1518
New York, NY 10017
212.796.8840
H. Ronald Klasko, Esq.
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Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has
been providing immigration assistance and solutions to leading universities, research
institutions, hospitals, multinational corporations, and individuals for over 25 years.
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Ron is a former National President of the American Immigration Lawyers Association and
served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s
Department of Labor National Liaison Committee, its Task Force on H and L Visas and
Business Immigration Committee. Mr. Klasko is one of only two recipients of the American
Immigration Lawyers Association Founders Award, bestowed upon the individual who has
had the most positive impact on immigration law.
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Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by The
Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America.
The International Who’s Who of Business Lawyers 2007 edition selected Ron as the “most
highly regarded” business immigration lawyer in the world. He is a frequent author and
lecturer on business-related immigration topics and is a former Adjunct Professor of
Immigration Law at Villanova University Law School.
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Ron is a graduate of the University of Pennsylvania School of Law.
Klasko, Rulon, Stock & Seltzer, LLP
Elise A. Fialkowski, Esq.

Elise Fialkowski has practiced immigration law for more than 14 years and is a
Partner at Klasko, Rulon, Stock & Seltzer, LLP, with offices in Philadelphia and
New York. Elise regularly assists U.S. and international corporate clients who seek
to hire or transfer foreign employees as well as foreign individuals seeking
employment in the United States as health care professionals, executives,
managers, and scientists.
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Elise has particular expertise in advising employers with regard to compliance with
the Immigration Reform and Control Act including I-9 Employment Eligibility
verification and worksite enforcement issues. A member of the American
Immigration Lawyers Association, Elise serves on the Executive Committee of its
Philadelphia Chapter.
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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
Theodore J. Murphy, Esq.
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Theodore J. Murphy (Ted) serves as counsel of Klasko, Rulon, Stock & Seltzer,
LLP and has been involved with immigration for the past 14 years - over a decade
with ICE and the former INS.
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As one of the government's most experienced attorneys, Ted represented the
Agency in all matters before the Immigration Courts and Board of Immigration
Appeals, handling criminal, national security, fraud and employer sanction
cases. Ted has served as a Special Assistant United States Attorney and as an
Adjunct Professor of Law at Temple University Beasley School of Law.
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In addition, he is a veteran of the United States Army's 82nd Airborne Division.
Ted received his undergraduate degree at Georgetown University (B.A. 1983) and
his Law Degree (J.D. 1994) and Masters of Law (International Law) (LL.M. 1997)
from Temple University.
Klasko, Rulon, Stock & Seltzer, LLP
DELVACCA AGENDA
Overview - Brave New World for Employers
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- New government enforcement priorities and techniques;
- Penalties for non-compliance, including criminal liability;
- Impact of State and local laws;
- Developing a policy for social security no-match letters;
- I-9 Compliance;
- Developing employer best practices;
- Choosing whether to participate in voluntary government
programs (E-Verify, IMAGE).
Klasko, Rulon, Stock & Seltzer, LLP
OVERVIEW
Brave New World for Employers
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Shortages of legally authorized employees
Lack of options to legalize workforce
Prospects for immigration legislation
State and local enforcement
Recent ICE enforcement initiatives
 ICE
raids
 Change from civil to criminal penalties
Klasko, Rulon, Stock & Seltzer, LLP
ICE Enforcement
Priorities and Techniques

"Worksite enforcement actions target a key component
of the illicit structure that enables illegal immigration to
flourish. No employer, regardless of industry or location
is immune from complying with the nation's laws. ICE
and our law enforcement partners will continue to bring
all of our authorities to bear in this fight using criminal
charges, asset seizures, administrative arrests and
deportations."
Julie Myers, Assistant Secretary for Homeland Security, U.S. Immigration and
Customs Enforcement issued a statement on September 27, 2007
Klasko, Rulon, Stock & Seltzer, LLP
ICE Enforcement Strategy
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Priorities
 Promote
national security
 Protect critical infrastructure
 Deport illegal aliens
 Enforce fair labor standards
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Trend toward Task Groups – Agency
collaboration with local law enforcement
“Continue to conduct robust investigations at
other places of employment”
Klasko, Rulon, Stock & Seltzer, LLP
ICE Worksite Arrests
Fiscal Year
2002
2003
2004
2005
2006
2007
Criminal
25
72
160
176
716
863
Administrative
485
445
685
1,116
3,667
4,900
Criminal arrests include corporate officers, employers, managers and
contractors.
Administrative arrests are illegal alien workers.
Klasko, Rulon, Stock & Seltzer, LLP
ICE Investigative Techniques
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Audit v. Raid
Notice of Inspection:
must give employer 3
days notice unless ICE
has a search warrant.
Notice of Intent to Fine
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Technical versus
Substantive violations
Klasko, Rulon, Stock & Seltzer, LLP
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ICE has the authority to
use wiretaps
ICE has the authority to
establish and operate
undercover investigations
ICE utilizes confidential
informants
ICE coordinates with IRS,
DOL and other agencies
Penalties for Non-Compliance

Civil – Effective March 27, 2008
 I-9
paperwork violations ($110 to $1,100)
 National origin and citizenship discrimination
 Knowing hire fines
 (1st
offense - $375 to $3,200 for each violation)
 (2nd offense - $3,200 to $6,500 for each violation)
 (3rd offense - $4,300 to $16,000 for each
violation).
Klasko, Rulon, Stock & Seltzer, LLP
Penalties for Non-Compliance
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Criminal
 Pattern
or practice of hiring unauthorized aliens
 Harboring/transporting/sheltering/smuggling/
encouraging unauthorized aliens to remain in the
U.S.
 Mail fraud, wire fraud, document fraud, social
security, fraud, identity theft, RICO
 Fines, forfeitures and imprisonment
 Liability relating to use of contractors and
subcontractors
Klasko, Rulon, Stock & Seltzer, LLP
Noteworthy Cases
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Wal-Mart
IFCO
Swift & Co.
Mohawk Industries
RCI
Garcia Labor Co.
Michael Bianco, Inc.
Sun Drywall & Stucco, Inc.
Klasko, Rulon, Stock & Seltzer, LLP
March 2005
April 2006
December 2006
2004, 2007
February 2007
March 2007
March 2007
March 2007
Noteworthy Cases
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Tarrasco Steel
American Staffing/Del Monte
Koch Foods, Ohio
Anna II, Inc.
Pepe’s Cabinets
Micro Solutions Enterprises
IFCO (continued)
RCI (continued)
Klasko, Rulon, Stock & Seltzer, LLP
May 2007
June 2007
August 2007
October 2007
November 2007
February 2008
February 2008
March 2008
RICO - Racketeer Influenced
and Corrupt Organizations Statute
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Employers who have illegal aliens to depress wages have new
fear: employees using racketeering laws to take them to court
1996 change to RICO – includes those who knowingly hire
illegal aliens – triple damages
January 2006 - $1.3 million judgment against Zirkle Fruit Co.
of Washington (plus legal fees)
2006 - Mohawk Industries, Inc. – 2nd largest US carpet
manufacturer; conspiracy to depress wages by hiring illegal
aliens
August 28, 2006 – RICO charges brought by Janitors against
Wal-Mart dismissed in Zavala v. Wal-Mart.
Klasko, Rulon, Stock & Seltzer, LLP
Impact of State and Local Laws
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As of December 31, 2007, at least 1562 pieces of
legislation related to immigrants had been introduced
among the 50 state legislatures – of the 240 that
became law – 29 effect employment in approximately 20
states.
Arizona, Arkansas, Colorado, Georgia, Hawaii, Illinois,
Iowa, Kansas, Louisiana, Maine, Michigan, Minnesota,
Mississippi, Montana, New Mexico, Oklahoma, Oregon,
Tennessee, Texas, Utah, West Virginia.
Some states require E-Verify while Illinois prohibits it.
Klasko, Rulon, Stock & Seltzer, LLP
Impact of State and Local Laws
Companies that knowingly hire illegal workers
may face:
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Possible loss of business licenses – Arizona,
Tennessee, West Virginia
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Possible loss of government grants and contracts –
Arkansas, Colorado, Delaware, Georgia, Idaho, Iowa,
Massachusetts, Minnesota, Oklahoma,
Pennsylvania, Tennessee, Texas
Klasko, Rulon, Stock & Seltzer, LLP
“No-Match” Regulations
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DHS/ICE issued regulations on August 15, 2007 to be
effective September 14, 2007.
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On August 31, 2007, the U.S. District Court for the
Northern District of California issued a temporary
restraining order, which enjoined the implementation of
the no-match regulations.
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On October 10, 2007, the same District Court granted a
motion for a preliminary injunction, which enjoins the
implementation of the no-match regulations.
Klasko, Rulon, Stock & Seltzer, LLP
“No-Match” Regulations
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On March 21, 2008 the Department of Homeland
Security announced a Supplemental Proposed Rule to
address and clarify issues raised by the US District
Court. DHS plans on requesting the preliminary
injunction be lifted. Federal Register/ Vol. 73, No. 59/
Wednesday, March 26, 2008/ Proposed Rule.
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On March 24, 2008 the Office of Special Counsel issued
Antidiscrimination Guidance in light of the DHS
Supplemental Rule announced on March 21, 2008.
Klasko, Rulon, Stock & Seltzer, LLP
Developing Policy for Social
Security “No Match” Regulation
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Actual knowledge vs. constructive knowledge
Constructive knowledge that employee is unauthorized
alien
 Failure to complete/improper completion of I-9
 “Reckless and wanton disregard” of employment of
unauthorized alien
 Employee requests sponsorship
 Social Security no match letter
 Written notice from DHS
Klasko, Rulon, Stock & Seltzer, LLP
Social Security
“No Match” Regulation (cont’d)
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“Reasonable steps” to rebut constructive
knowledge presumption (“safe harbor”)
 Within
30 days: employer check/correct records and
inform SSA/DHS
 Within 90 days: if employer records correct, request
employee confirmation
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If employee corrects record, employer correct and inform SSA
If employee states employer records correct, employee must
resolve discrepancy with SSA within 90 days
Klasko, Rulon, Stock & Seltzer, LLP
Social Security
“No Match” Regulation (cont’d)
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Within 93 days: if unresolved after 90 days, new I-9 must be
completed by the 93rd day.
 Employer cannot accept the following:
 Any document referenced in written notice
 Any document with disputed social security or alien
number
 Any receipt for replacement of such document
 Employee must present a document with a photograph
If not, terminate
Klasko, Rulon, Stock & Seltzer, LLP
I-9 Compliance
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Must complete for all employees
1st day for employee / 3 days for employer
Originals or copies of documents?
Reverification of employees with expired work
authorization
Maintain 3 years from date of hire or 1 year after
employment ends, whichever is later
Dealing with suspect documents
Avoiding common I-9 mistakes
Audit I-9s / correct I-9s
Klasko, Rulon, Stock & Seltzer, LLP
Developing Employer
Best Practices
Explicit policy prohibiting use of undocumented
workers
 Communicate policy to staff
 I-9 training
 I-9 audits
 Develop policy regarding contractors
 Develop consistent I-9 compliance policies
 Avoid national origin and citizenship discrimination
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Klasko, Rulon, Stock & Seltzer, LLP
Employer Best Practices (cont’d)
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Establish protocol for responding to social security
mismatch letters
Develop strategy for ensuring legal workforce
Create Corporate Immigration Policy Statements
Terminate employees who knowingly accept counterfeit
documents
Track expiration dates of foreign national employees
Terminate foreign national employees discovered to be
without authorization to work
Klasko, Rulon, Stock & Seltzer, LLP
Choosing Whether to Participate
in Voluntary Government Program
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E-Verify
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Checks social security number against national database
New photo screening tool
Voluntary program
Best means to verify employment eligibility electronically
Database imperfect
Rebuttable presumption of compliance
Significant obligations, including allowing ICE and SSA to
visit based on Memorandum of Understanding
Klasko, Rulon, Stock & Seltzer, LLP
Memorandum Of Understanding
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Main Employer Responsibilities
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Comply with all I-9 requirements
Post notices
Agree to periodic visits by ICE and SSA for routine audits
Attach results to Form I-9 and retain for same time as form
Rebuttable presumption of compliance if confirmation is
obtained
If continued employment after Final Non-Confirmation a
rebuttable presumption of violation of INA § 274A(a)(1)(A) is
created
If company participates in good faith ICE waives criminal and
civil liability for some offenses relating to hiring unauthorized
employees.
Klasko, Rulon, Stock & Seltzer, LLP
General Guidelines for E-Verify
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Not a substitute for I-9 compliance
Does not provide protection against worksite
enforcement
Cannot be used to pre-screen for discrimination
Can only be used to verify eligibility of newly hired
employees
Queries must be conducted within 3 days after hire
You can leave the E-Verify program only after 30 days
notice
Klasko, Rulon, Stock & Seltzer, LLP
Guidelines for E-Verify (cont’d)
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What you need:
 Information from Section 1 and 2 from the Form I-9
 Employees name
 Date of Birth
 Social Security Number
 Citizenship Status employee attest to
 A# or I-94 # if applicable
 Expiration dates for identification and eligibility
documents
 Identification document provided from List “B” must
contain a photograph
Klasko, Rulon, Stock & Seltzer, LLP
Results
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Confirmation – GREEN LIGHT
 Record
the case verification number of Form
I-9 or attach printout of result screen.
 This ends the process - Obligation to re-verify
remains for time limited authorizations.
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Final Non-Confirmation – RED LIGHT
 Record
the case verification number of Form
I-9 or attach printout of result screen
 Review No-Match Q & A from guidance
Klasko, Rulon, Stock & Seltzer, LLP
Results
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Tentative Non-Confirmation – Yellow Light
 System
cannot perform immediate match
 NOT grounds for termination
 Follow up steps:
1. Double check input date to ensure no errors (if errors
are found run SSA query again)
2. Record case verification number
3. Inform employee of tentative non-confirmation
Klasko, Rulon, Stock & Seltzer, LLP
Results (cont’d)
4.
Inform employee he/she has the right to contest information with
SSA or DHS
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If employee does not wish to contest information – YOU MUST
TERMINATE EMPLOYMENT
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If employee wishes to contest information – you must provide him
with a referral letter to SSA or refer him to contact DHS.
Employee has 8 Federal Working Days to resolve discrepancy
with SSA and/or DHS.
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On the date that is 10 Federal Working Days after the date of the
referral you must query the system again.
Klasko, Rulon, Stock & Seltzer, LLP
Choosing Whether to Participate
in Voluntary Government Program (cont’d)
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ICE Mutual Agreement between Government and
Employers (“IMAGE”) (www.ice.gov/partner/opaimage)
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I-9 audit by ICE
Verify social security numbers of existing workforce
ICE training and education
Commit to ICE “best practices”
Establish “tip line” to ICE
Does not ensure against raid, investigation, fine or
criminal action
Klasko, Rulon, Stock & Seltzer, LLP
Social Security Number
Verification Service (SSNVS)
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Social Security Number Verification Service (SSNVS) is
an online service that allows registered employers and
third-party submitters to verify employee names and
SSNs against SSA’s records for wage reporting
purposes only.
This service cannot be used to verify employment
eligibility.
Klasko, Rulon, Stock & Seltzer, LLP
Questions ?
Klasko, Rulon, Stock & Seltzer, LLP
For Further Information
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Elise A. Fialkowski, Esq.
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Tele: 215.825.8647
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Fax: 215.825.8699
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E-mail:
efialkowski@klaskolaw.com
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Theodore J. Murphy, Esq.

Tele: 215.825.8646

Fax: 215.825.8699

E-mail: tmurphy@klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP