title goes here presented by: chris thomas (shareholder, ogletree deakins) immigration compliance...
TRANSCRIPT
Title Goes Here
Presented By:
Chris Thomas (Shareholder, Ogletree Deakins)
Immigration Compliance
October 2, 2015
MANAGING A WORKFORCE IN 2015 ▪ October 2, 2015 ▪
Immigration Compliance
Change in the Equation: ICE will “focus its resources in
the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause
of illegal immigration.”
MANAGING A WORKFORCE IN 2015 ▪ October 2, 2015 ▪
Immigration Compliance
What the Law Requires:1. Properly Completed I-9.2. Good Faith Belief New Hire is Eligible to Work.3. Good Faith Belief Current Employee Continues to be
Eligible to Work.
How Do Employers Get Selected for Audit?
MANAGING A WORKFORCE IN 2015 ▪ October 2, 2015 ▪
Immigration Compliance
Employees NOT Covered: Hired on or before November 6, 1986 Casual hires ( “sporadic, irregular, or intermittent
domestic needs”) Employees of Independent contractors.
Wal-Mart Exception
Retention Requirements Three years from the date of hire; or One year from the date of termination Whichever of the two dates is later
Current employees should have I-9s on file
MANAGING A WORKFORCE IN 2015 ▪ October 2, 2015 ▪
Immigration Compliance
Substantive v. Technical Errors Fineable Offenses Non-Fineable Offenses
Why Correct I-9 Forms?
“We view the good faith of an employer differently when corrections are made post-notice of inspection. ICE is tougher on those issues.”
Immigration Compliance
Immigration Compliance
Immigration Compliance
Acceptable Documentation “Reasonably appears, upon
reasonable inspection of its features and the information it contains, to be genuine and to relate to the employee.”
Indications of Fraud: Photo doesn’t match employee. Card printed on DOJ/INS
letterhead (after 2004). Agency name misspelled. Varying fonts.
Immigration Compliance
Document Expert You are not required to be document expert. You
must accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if your new employee provides a document that does not reasonably appear to be genuine and relate to them, you must reject that document and ask for other documents that satisfy the requirements of Form I-9 (DHS I-9 Central).
What is Reasonable?
Immigration Compliance Samples of I-551 Versions:
Immigration Compliance Samples of I-551 Versions:
Immigration Compliance Samples of I-551 Versions:
Immigration Compliance Samples of I-551 Versions:
Immigration Compliance Samples of EAC Version:
Immigration Compliance SSN Versions (more than 50 since 1936):
Immigration Compliance SSNs having the following characteristics
are invalid or impossible: • AREA, GROUP, or SERIAL are composed of all
zeroes (e.g, 000-45-6789, 123-00-6789, 123-45-0000)
• AREA number 666 (never have and never will be issued)
• AREA numbers 700 to 728 (Railroad workers through July 1, 1963, then discontinued)
• AREA numbers 900-999 (not valid SSNs, but were used for program purposes when state aid to the aged, blind and disabled was converted to a federal program administered by SSA)
Immigration Compliance
Ongoing responsibility to monitor workforce.
Examples of Actual / Constructive Knowledge: Confession DHS Audit Unusual Event in the Workplace Request for Labor Certification Rumors Mismatch Letter from Social
Security
Immigration Compliance
Civil Penalties Cease and Desist Order
Fines: Knowing Employment of Illegal Aliens ($375
to $3200 per defective I-9)
Paperwork Violations ($110 to $1100 per defective I-9).
Debarment or suspension from entering Federal Contracts
Immigration Compliance Remember the Change in
Equation--Criminal Focus: Pattern and Practice in hiring
(misdemeanor). Knowingly Hiring 10
Unauthorized Workers in 12 Months.
Harboring or Encouraging or Inducing (Favorite). Forfeiture of Assets
Making false attestation on I-9 (Perjury and Visa Fraud).
Immigration Compliance
Discrimination still prohibited.
Common document abuse situations: Request specific document. Pre-screen hires. Re-verify U.S. citizens or permanent
residents. Reject acceptable documentation.
Immigration Compliance
Immigration Compliance
How Do President Obama’s Executive Orders affect Compliance?
Deferred Action for Parental Accountability (DAPA)
Deferred Action for Childhood Arrivals (DACA)
Eligibility
• Parents of U.S. citizens and ‘green card’ holders as of 11/20/14
• Continuously present in U.S. since before 1/1/10
• Eliminates age cap of 31• Must have been in U.S.
as of 1/1/10• Background check and
education requirement
Timeframe
• USCIS to begin accepting work permit applications by May 2015
• 2-3 months for processing
• 90 days from 11/20/14• 3-year period for EADs
Immigration Compliance
Compliance Considerations for Employers• I-9 employment verification• Company ‘honesty policy’• State immigration laws• CA’s no retaliation law
• Ability to update personal information without fear of retaliation (e.g., discharge, discrimination, or other adverse action).
Immigration Compliance
E-Verify:Voluntary (unless state or
executive order for federal contracts law applies).
What does E-Verify Accomplish? Rebuttable presumption of legal
workforce. No “safe harbor” from worksite
enforcement.
Hiring Practices
Lawful Questions in the Hiring Process: Are you legally authorized to work in the United
States? (Yes or No) Will you now or in the future require
sponsorship for employment visa status (e.g., H-1B status)? (Yes or No)
Do not ask applicant to specify citizenship status or basis of current employment authorization.
Best Practices• Use E-Verify for all new hires.
• Use SSNVS for wage reporting.
• Establish a written I-9 Compliance Policy.
• Implement compliance and training programs.
• Allow only trained personnel to complete I-9s.
• Perform annual internal I-9 audits.
• Ensure contractors comply with law.
• Establish a protocol for responding to government agencies.
• Implement policies to protect against document abuse.
• Maintain clear copies of verification documents.
