DELVACCA presents
2010 Update on Immigration
and
Employer Compliance
February 11, 2010
Sponsored by:
Lori E. Halber, Esq.
Lori E. Halber, Esq.
halberl@jacksonlewis.com
267-319-7817(o)
Robert C. Seiger, Esq.
seigerr@jacksonlewis.com
267-319-7805 (o)
Copyright, 2003 Jackson Lewis LLP
Slide 1
Part 1 – Worksite Enforcement
Copyright, 2003 Jackson Lewis LLP
Slide 2
Pre-Obama Era
“Unleash the Hounds!”
 White House: Announces
enforcement initiatives
 DHS: More worksite for ALL
employers
 DOL: More stringent review of labor
cert. petitions
 ICE: More complex investigations
 ICE: Increasing the cost of doing
business
Copyright, 2003 Jackson Lewis LLP
Slide 3
Immigration Inflation:
Increasing the Cost of Doing
Business
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Increased I-9 audits
Criminal indictments & grand juries
Large-scale raids
Publicizing raids and indictments
Criminal search warrants
Asset forfeiture
Federal contract debarment
Copyright, 2003 Jackson Lewis LLP
Slide 4
DHS Rhetoric? - The “Numbers”
 Over 1,100 criminal arrests tied to worksite investigations;
 Over 5,100 administrative (deportation) arrests;
 Indicted 135 business owners, managers, supervisors or
human resources employees for criminal offenses
including harboring, smuggling, and money laundering;
 Largest single site worksite operation at a Howard
Industries’ plant in Laurel, Mississippi, resulting in arrest
of over 600 employees;
 Over $30 million in criminal fines, restitutions, and civil
judgments in worksite enforcement cases;
 Record $20.7 million settlement; and
 For the first time, debarring seven companies from
federal contracting.
Copyright, 2003 Jackson Lewis LLP
Slide 5
The Genesis of an ICE Investigation
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Tips from employees and public to ICE hotlines
Unions becoming increased source of tips to ICE
Non-response to hotline/ethics calls
Social Security No-Match letter history
Local pressures
Key industries (high turnover)
Critical infrastructure and Dept. of Defense
DOL, SSA, IRS, GSA, etc.
Temporary worker providers
Copyright, 2003 Jackson Lewis LLP
Slide 6
Targeting the HR Officers and Supervisors
Why me?
 Funnel point in I-9 process & internal
communications
 Responsible for I-9 and verification
 Greatest interaction between upper
management and workforce
 Criminal indictment pressure on HR
employees may result in creation of
source, informant, and/or witness
Copyright, 2003 Jackson Lewis LLP
Slide 7
A Rosier Future Under Obama?
 Federal Contractor E-Verify Rule mandating an estimated
160,000 contractors to use E-Verify effective September
8, 2009.
 $100M in FY 10 budget for E-Verify expansion.
 USCIS performing thousands of “on-site” H-1B
Inspections.
 On July 2, 2009, ICE issued Notices of Inspection to 652
employers requiring them to produce to ICE copies of I-9s
for all employees. In announcing the initiative, ICE
Assistant Secretary John Morton emphasized ICE’s
commitment to worksite enforcement. He said the audits
were “a first step in ICE’s long-term strategy to
address and deter illegal employment.”
Copyright, 2003 Jackson Lewis LLP
Slide 8
Introducing DHS Secretary Napolitano
"I expect to increase the focus on
ensuring that employers of unlawful
workers are prosecuted,"
DHS Secretary Napolitano,
January 15, 2009 During her DHS Senate
Confirmation Hearing
Copyright, 2003 Jackson Lewis LLP
Slide 9
Role of Worksite Enforcement
 Check illegal immigration
 Stop Abusive and Egregious Employment
Practices
 Deter Criminal Activities including:
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Alien Smuggling
Illegal Inducement
Harboring
Unauthorized Employment
Document Fraud
 Promote national security
 Protect critical infrastructure
 Ensure fair labor practices
Copyright, 2003 Jackson Lewis LLP
Slide 10
Re-Introducing the I-9
 It is evidence for a prosecution.
 It is a prosecution tool against the employee.
 It is a prosecution tool against the employer.
 Guess who signs it?
… Potential defendants.
Copyright, 2003 Jackson Lewis LLP
Slide 11
Tips for Surviving the New Era of Worksite
Enforcement
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Re-acquaint yourself with I-9 process
Where are the records?
Find out about No-Match history
Procedures to create UNIFORMITY
Respond to identified risks/complaints
Prepare for the audit freeze
Training
The form
Maintenance and internal audits
Copyright, 2003 Jackson Lewis LLP
Slide 12
Questions for Employers to Ask:
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Do you have written policies?
Do you apply procedures uniformly?
Have you trained HR Managers?
Does payroll equal number of I-9s?
Where are the No-Match letters?
SSNVS? What happens?
Heightened review of Supervisors & HR staff?
What control over temps/recruiters?
Internal audits and corrections?
Remember: Civil Rights & OSHA
Am I using the new Form I-9 – August 7, 2009?
Copyright, 2003 Jackson Lewis LLP
Slide 13
Part 2 – I-9 Refresher
Copyright, 2003 Jackson Lewis LLP
Slide 14
Employment Authorization
Verification:
New I-9 Form
 New Form I-9 went into effect on August
7, 2009
 Can still use form with revision date
February 2, 2009…..until further notice!
 All documents must be unexpired
 Adds U.S. passport card to List A
Copyright, 2003 Jackson Lewis LLP
Slide 15
Base Obligations of Employers
 Properly and fully complete Form I-9 within 72
hours of employee’s start of employment:
 Certain parts must be completed on day 1
 Documents must be presented within 72 hours
 Listed documents must be reviewed to ensure they look
authentic
 Two (2) schools of thought as to whether to copy and
retain back-up documents
 Employers can also request to see Social Security
cards on the first day of employment for payroll
purposes
Copyright, 2003 Jackson Lewis LLP
Slide 16
Employer Review and Certification
 Employee completion of Section 1 no later than first day
at work
 Section 2 Must Be Completed No Later Than Three
Business Days After Commencement of Employment
 One Document in LIST A OR
 One Document in LIST B AND One Document in LIST C
 Work Start Date in Certification Bloc
 Employer Representative Signature, Printed Name, Title
 Business Address
 Date
Copyright, 2003 Jackson Lewis LLP
Slide 17
Practical Hints
 Employee Authorization Verification v. NonDiscrimination
 Do Not Ask For Any Documents To Substantiate
Section 1 (except SS card if participating in EVerify)
 Do Not Ask For Any Particular Documents For
Section 2
 Review Documents Produced For Section 2
Against Section 1 And Give Employee A Chance
To Correct Section 1
 I-9 Timing And Hiring Decisions
Copyright, 2003 Jackson Lewis LLP
Slide 18
Electronic I-9
 USCIS provides a Portable Document Format
fillable-printable Form I-9 from its
Website, www.uscis.gov.
 Form I-9 can be electronically generated and
retained, provided that:
 The resulting form is legible;
 No change is made to the name, content, or sequence of the
data elements and instructions;
 No additional data elements or language are inserted;
 The employee receives Form I-9 instructions; and
 The standards specified under 8 CFR 274a.2(e) are met.
Copyright, 2003 Jackson Lewis LLP
Slide 19
Electronic Storage Requires
 Reasonable controls to ensure the reliability of
storage system
 Reasonable controls to prevent unauthorized
alteration, deletion of electronically stored I-9
(including electronic signature)
 A quality control program that regularly
evaluates the integrity of storage system
 A retrieval system that includes an indexing
system that permits searches of stored data
 The ability to produce legible paper copies
Copyright, 2003 Jackson Lewis LLP
Slide 20
Destroy the Originals?
 Ability to fill out an original paper form I-9 and
scan and upload the signed form to retain it
electronically
 Once I-9 appropriately stored in electronic
format ---OK to destroy the original paper I-9
Copyright, 2003 Jackson Lewis LLP
Slide 21
Reverifying Current Employees
 When employee’s employment authorization
expires (no later than date authorization expires)
 You may reverify on Section 3 of current I-9 or
use a “new” I-9 form
 If using a “new” I-9, write employees name in
Section 1, complete Section 3 and retain “new”
I-9 along with the original
 For reverification, employee must provide
evidence of extension of initial authorization or
new employment authorization
Copyright, 2003 Jackson Lewis LLP
Slide 22
Reverifying Rehired Employees
 If you rehire an employee within 3 years of initial
date of hire you may reverify on original I-9
 Check original I-9 to ensure employee’s
previous employment authorization is still valid
 If not, reverify with new employment
authorization
Copyright, 2003 Jackson Lewis LLP
Slide 23
Part 3
Copyright, 2003 Jackson Lewis LLP
Slide 24
E-Verify
 E-Verify:
 Formerly the Basic Pilot/Employment Eligibility Verification
Program)
 Operated jointly by the DHS and SSA online
 Check the work status of new hires by comparing
information from an employee’s I-9 form against SSA and
DHS databases
 More than 87,000 employers are enrolled in the program,
with over 6.5 million queries run so far in fiscal year 2008
 Voluntary program for most employers - YMMV
 Over 444 million records in the SSA databases and more
than 60 million in DHS databases
 Registered employers growing over 1,000 per week
Copyright, 2003 Jackson Lewis LLP
Slide 25
Federal Contractors and E-Verify
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Federal Contractors who have been awarded a contract on or
after September 8, 2009 are subject to E-Verify
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Your government Contracting Officer should be consulted to
determine whether your contracts will include the E-Verify clause
requiring compliance with E-Verify
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To comply with E-Verify you must verify all NEW hires as well as
all EXISTING employees assigned to the affected contract
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Alternatively, you have the option of running ALL existing
employees through E-Verify…as long as……ALL existing
employees would need to be run through E-Verify within 180
days after notification to DHS to exercise this option
Copyright, 2003 Jackson Lewis LLP
Slide 26
Which “PRIME” Federal Contracts?
 Contract was awarded on or after September 8,
2009 and includes the E-Verify Clause
 The contract has a period of performance that is
more than 120 days
 The value exceeds $100,000
 At least some portion of the work under the
contract is performed in the United States
Copyright, 2003 Jackson Lewis LLP
Slide 27
Subcontracts and Enrollment
 Subcontracts for more than $3,000 for services
or construction also qualify for the inclusion of
the E-Verify clause
 Enrollment in E-Verify must be within 30 days
after the contract award date
Copyright, 2003 Jackson Lewis LLP
Slide 28
Exemptions From E-Verify
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Contracts where period of performance is less than 120 days
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Value of contract is less than $100,000
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All work is to be performed OUTSIDE the United States
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Contract includes only commercially available off the shelf
(COTS) items
Copyright, 2003 Jackson Lewis LLP
Slide 29
E-Verify versus SSNVS
 Social Security Number Verification Service
(“SSNVS”) is an internet based system whereby
an employer can verify that employee names
match Social Security records. Register at
www.ssa.gov
 Can only be used to verify current or former
employees and only for wage reporting (W-2)
purposes
 Can verify up to 10 names at as time and
receive immediate results
Copyright, 2003 Jackson Lewis LLP
Slide 30
Part 4 - Visas
Copyright, 2003 Jackson Lewis LLP
Slide 31
Impact Of Economic Downturn On
Nonimmigrant Visa Status
• Due Diligence
– Employee status
– Corporate compliance
• Myriad Personnel Actions
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Reductions-in-force
Benching/furloughs
Changes in compensation
Changes in position duties
Changes in job location
Changes in benefits
Copyright, 2003 Jackson Lewis LLP
Slide 32
Impact Of Economic Downturn On
Permanent Residence Process
• Individuals PERM (Labor Certification)
– Termination
– Change in salary, position, job location
• Entire PERM Program
– Hiring “freezes”
– RIF’s
– Targeted Position Eliminations
• U.S. Applicant Availability
• DOL Scrutiny of Target Industries
• Long Term Horizon
– Final NIV dates
Copyright, 2003 Jackson Lewis LLP
Slide 33