immigration compliance update: recent developments in immigration law

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  1. 1. Immigration Compliance Update: Recent Developments in Immigration Law Involving the Workplace Stephen Davis
  2. 2. Recent Developments in Four Areas Internal I-9 Audit Tips Constructive Knowledge E-Verify and I-9 Decisions Proposed E-Verify Changes
  3. 3. Civil Fines and Criminal Penalties for I-9/Immigration Violations
  4. 4. DOJ and ICE Publish Joint Guidance on Internal I-9 Audits In December 2015, U.S. Immigration and Customs Enforcement (ICE) and the U.S. Department of Justice (DOJ) Civil Rights Division issued joint guidance for employers conducting internal Form I-9 audits. The guidance addresses some key concerns and issues frequently encountered in the course of in-house audits, including the purpose of the audit, how to correct certain errors on the I-9 and how to handle potential unauthorized workers going forward. Joint guidance available at:
  5. 5. DOJ and ICE Publish Joint Guidance on Internal I-9 Audits What information should an employer communicate to its employees before and during an internal audit? The guidance recommends that the employer inform the employee in writing that the employer will conduct an internal I-9 audit, explain the scope and reason for the internal audit, and state whether the internal audit is independent of or in response to a government directive. When a deficiency is discovered in an employees Form I-9, the employer should notify the affected employee, in private, of the specific deficiency. Also provide the employee with a copy of the deficient I-9 and give the employee a reasonable opportunity to correct it.
  6. 6. DOJ and ICE Publish Joint Guidance on Internal I-9 Audits What is the proper procedure for correcting errors or omissions found on a Form I-9? Section 1 of the I-9 Form An employer may not correct errors or omissions in Section 1- only the employee can. The best way to correct the error is to have the employee: (1) draw a line through the incorrect information; (2) enter the correct or omitted information; and (3) initial and date the correction or omitted information. If the employee no longer works for the employer, the employer should attach to the existing I-9 Form a signed and dated statement identifying the error or omission and explain why corrections could not be made (for example, the employee no longer works for the employer).
  7. 7. DOJ and ICE Publish Joint Guidance on Internal I-9 Audits Sections 2 and 3 of the I-9 Form An employer should correct errors in these sections by following the same process: (1) mark through the error; (2) enter the correct information; and (3) initial and date. Do not erase text or use correction fluid. If there are multiple errors, fill out the correct information on a new I-9 Form and attach it to the previously-completed form. Also attach a brief explanation of the changes and sign and date the explanation.
  8. 8. DOJ and ICE Publish Joint Guidance on Internal I-9 Audits What if the internal I-9 audit reveals that an employee did not present proper documentation? The employer should ask the employee to present documentation to satisfy the requirements and complete Section 2 or 3 (whichever is applicable) on a new I- 9 Form. Do not backdate the new I-9. Staple the new I-9 with the prior I-9 and include a signed and dated explanation of the corrective action taken.
  9. 9. DOJ and ICE Publish Joint Guidance on Internal I-9 Audits What if the employer uses E-verify and the internal audit reveals that the employer did not create an E-Verify case for a certain employee? The general rule (unless you are a federal contractor) is that you cannot run existing employees through E-Verify. Under this circumstance, if the employer learns that it mistakenly failed to create a case in E-Verify, the employer should immediately create a case for the employee. May an employer request specific documents when correcting a Form I-9 as a result of an internal audit? No. Although an employer may tell an employee that a particular document called into question by the internal audit may not be used again, the employer should not request specific documents.
  10. 10. DOJ and ICE Publish Joint Guidance on Internal I-9 Audits Is an employer required to terminate employees who, as a result of the employers internal Form I-9 audit, disclose that they were previously not authorized to work, even though they are authorized to work now? No. This is not required by the law. In cases where an employee was not previously authorized to work (and the employer had no knowledge thereof), but the employee is authorized now, the employer is not required to terminate. However, the employer should be careful to apply its honesty policy (if applicable) in a consistent manner. If the employer decides to retain the employee, a new Form I-9 must be completed, attached to the prior I-9 with a signed and dated explanation.
  11. 11. Current I-9 Form Remains Valid After Expiration Date USCIS announced recently that the current version of the I-9 Form will remain in use beyond its March 31, 2016 expiration date. Employers should continue to use this I-9 Form, which bears an edition date of March 8, 2013, until further notice. USCIS is working on a proposed smart PDF version of the I-9 Form with drop-down menus and detailed instructions embedded in hover text. The revised I-9 Form will not be released until it clears the federal approval process, which will probably be several months from now.
  12. 12. Constructive Knowledge When does an employer have constructive knowledge that an employee is not authorized to work? Constructive knowledge is defined as knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. 8 CFR 247 Guidance in this area of the law is constantly changing and can be interpreted differently by different auditors or agents. Check with immigration counsel and/or the I-9 employer helpline before taking action on constructive knowledge issues.
  13. 13. Constructive Knowledge Pointers Constructive knowledge can arise where an employer: Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9; Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf. 8 CFR 274a.1(l)(1)
  14. 14. Constructive Knowledge Hypothetical #1 An anonymous person called human resources and left a message stating that all of the workers on assembly line 8 are illegal. Constructive knowledge under this scenario? Is the employer required to take any action based on these anonymous allegations? NO This tip probably does not rise to the level of constructive knowledge.
  15. 15. Constructive Knowledge Hypothetical #1 (Continued) The employer needs to evaluate the credibility and the specificity of the information to determine whether further inquiry is required. While an anonymous tip does not lack credibility merely by virtue of being anonymous, the tip must be more specific for the employer to act further. Moreover, this tip does not identify any particular employee by name or provide any basis for the callers knowledge. Finally, because the tip is anonymous, the employer does not have the ability to follow up with the caller to obtain additional information about the reason or basis for the allegations.
  16. 16. Constructive Knowledge Hypothetical #2 A benefits specialist calls a human resources representative and tells her that the Social Security Numbers of six employees were rejected because of discrepancies. Constructive knowledge under this scenario? MAYBE This is a situation that requires the employer to investigate further to determine the reason for the discrepancy.
  17. 17. Constructive Knowledge Hypothetical #2 (Continued) Benefits specialists are often the ones who would notice a discrepancy in filing tax paperwork, health insurance, retirement fund contributions, etc. Based on this information, the employer would need to determine if the Social Security Number being used is valid and belongs to the specific employee. This should be done in a non-discriminatory manner and fully documented, as it is possible that the employees are victims of identity theft rather than being the ones using someone elses number. The best course of action is to notify the employees and let them know what has occurred and ask them to verify that their information on file is correct. If the employees confirm that the Social Security Number is correct, the employer should give the employee sufficient time to retrieve evidence from the Social Security Administration (SSA).
  18. 18. Relationship Between Constructive Knowledge And Document Abuse Employer must avoid document abuse and the risk of being fined by the U.S. Department of Office of Special Counsel (OSC). If the employer requests specific documents or more documentation from the employee that is required by law, the employer could be found liable for document abuse. Avoid document abuse by developing a consistent strategy: Remember that the employer has an interest in avoiding a disruption to the employment relationship. The employer is not expected to be a detective ferreting out all unauthorized workers from its workplace. In situations where the employee presents documents evidencing employment eligibility from the acceptable list of documents on Form I-9, those documents are prima facie proof of the employees eligibility to work in the United States.


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