The New ICE May be after your Company American Payroll Association

The New ICE May be after your Company American Payroll Association August 9, 2018 Presented by: Bruce E. Buchanan Sebelist Buchanan Law PLLC Nashville, TN & Atlanta, GA bbuchanan@sblimmigration.com

I-9 Audits by ICE • ICE is on pace to conduct 5,000+ ICE Audits in FY 2018, which is 400% increase from 2017; • Additionally, ICE announced it’s goal is 10,000 to 15,000 Audits per year; • ICE stated goal is to remove magnet drawing people to enter US illegally; • Want employers to fear ICE as much as they fear IRS.

Detaining of Company Employees • In 2018, ICE has changed its position on detaining undocumented workers in company’s workforce during an Audit; • Previously, ICE would issue Notice of Suspect Documents concerning undocumented workers and force employers to discharge undocumented workers; • In recent ICE audits, ICE has detained many workers during the audits.

Return of ICE Raids • Since 2008, end of Bush Administration, ICE has not raided employers; • In April, ICE raids returned & ICE has detained 100+ employees at each raid; • Bean Station, TN slaughterhouse; • Salem, Ohio meat supplier; and • Sandusky and Castalia, Ohio plant nursery • Employees were often charged with ID theft and arrested for that or sent to Immigration Court.

ICE Raid v. ICE Audit • Difference - ICE Raid vs ICE Audit? • ICE Raid - Large number of ICE agents converge on facility with criminal search warrant and round up employees suspected of criminal offenses and/or undocumented status; ICE Audit – 2 ICE agents deliver Notice of Inspection demanding I-9 forms be provided within 3 days.

Preparing for ICE Raid • Is there a way to prepare for ICE raid? • Yes, don’t commit criminal/civil violations, such as paying employees in cash, no use of I-9 forms, committing tax fraud, harbor undocumented workers, etc. • The end result of an ICE raid: • Employer will normally be criminally charged; • Loss of lots of employees;

High Profile ICE Cases • 7-Eleven • Asplundh Tree Experts • Southeastern Provisions

Penalties for Violations • Penalties have significantly increased for violations from November 2015 forward; • $224 - $2,236 per I-9 form for 1st offense (depending on % of violations) for substantive or uncorrected technical violations (increase from $110 to $1,100; • $559 - $4,473 for each knowingly employed unauthorized worker (depending on first offense or subsequent offenses).

Penalties for Violations (cont’d) • New matrix for substantive or uncorrected technical violations – 1st offense: • 0-9 % $224 30-39% $1,202 • 10-19% $545 40-49% $1,530 • 20-29% $873 50%+ $1,859 • 5 factors worth 5% each, which can increase or decrease penalties: size of business, seriousness, good/bad faith, prior violations, and presence of undocumented workers.

Best Practices in I-9 Compliance • Best employment practices include: • Establish an internal compliance and training program covering I-9 compliance; • Conduct an annual internal Form I-9 audit. • Participate in E-Verify to verify employment eligibility of new hires (however - some negatives); • Establish a written Immigration Compliance policy; • Maintain copies of any documents accepted as proof of identity and employment authorization with the Form I-9 for all new hires;

Internal I-9 Audits • The best way to prepare for an ICE Notice of Inspection (NOI) is to perform an internal I-9 audit; • By doing so, you should locate and correct substantive errors on your I-9 forms; • If you correct the errors properly, then there are few errors and more likely to receive lower or no penalties;

Internal I-9 Audits (cont’d) • Internal I-9 audits (also called self-audits) are not required by law but can be extremely helpful to employers; • Internal I-9 audits do not offer immunity if ICE conducts an ICE inspection; • If an employer chooses to conduct an internal I-9 audit, it cannot be conducted in a discriminatory, due to employees’ citizenship status or national origin, or retaliatory manner.; • Employer may choose to review all I-9 forms or a sample of I-9 forms selected based on neutral and non-discriminatory criteria. If a subset of I-9 forms is audited, the employer should consider carefully how it chooses I-9 forms to be audited to avoid discriminatory or retaliatory audits.

Internal I-9 Audits (cont’d) • Employers should conduct internal I-9 audits yearly or less frequently, depending on size of company and number of employees hired each year; • Employers should conduct internal I-9 audit, through or under supervision of immigration compliance counsel; • If do it on your own, these issues may arise: • Person who initially filled out Section 2 may be one performing audit; • Person may not be trained on how to correct errors; • May not be correct person and/or following correct procedure to correct errors.

Common I-9 Form Errors • Most common error – either not completing I-9 form or losing it after the fact; • Common Errors in Section 1 of I-9 Form • Failure of employee to sign I-9; • Failure of employee to check a box on his immigration status; • Failure of employee to date signature or use DOB as date; • Failure of employee to provide full address; • A number missing.

Common I-9 Form Errors (cont’d) • Common Errors in Section 2 of I-9 Form • Failure to complete List A or Lists B and C; • Completion of List C after completing List A; • Failure to write A number of employee; • Failure of employer representative to sign Section 2; • Failure to write employee’s name at top of page 2; • Failure to complete and sign I-9 in 3 days; and • Failure to appropriately re-verify.

Who Corrects I-9 Form Errors • If errors are found on I-9 forms, they should be corrected by: • Section 1 errors by employee; • Sections 2 and 3 errors by employer; • For changes in Section 2 by employer, it should be the individual who originally reviewed documents and signed certification; • If that person is no longer employed, it would be best for employee and employer to fill out new I-9 form.

Correcting Errors or Omissions • If an I-9 form is missing data, such as title of document or expiration date of document, add information to existing I-9 form, initial and date addition in different color pen. • If information put in wrong list, i.e., Social Security in List B or driver’s license in List C, draw arrow to correct List, initial and date in different color pen.

Correcting I-9 Errors (cont’d) • To correct multiple errors on I-9 form, you may complete a new I-9 form and attach it to the old form; • New I-9 form or section of I-9 form can be completed if major errors (i.e., entire sections being left blank or Section 2 being completed based on unacceptable documents) need to be corrected; and • Note should be included concerning reason changes were made to existing I-9 form or completed a new I-9 form.

Common Questions re: Internal I-9 Audits • Question: What should employer do when discovers an I-9 form was never completed or is missing? • Answer: Complete current version of I-9 form ASAP; • Employer should not backdate the form, which should never be done under any circumstances. • The employer should attach a signed and dated explanation of the corrective action taken.

Documentation • Employer is required to accept original I-9 form documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation. • If an employer concludes that a document does not appear to be genuine or to relate to the person who presented it, the employer should talk to employee and provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents.

Over-Documentation • Do not put information in List B or C if filled out List A and vice versa; • This is over-documentation, which may trigger investigation by Immigrant & Employee Rights Section of DOJ for document abuse & IER could fine company; • If too much information filled out in Lists A, B and C, cross-out unneeded information, such as List A (because completed Lists B and C), initial and date in different color pen.

Copies of I-9 Forms • What should an employer do if an internal audit uncovers photocopies of I-9 forms? • Employer should immediately get new I-9 form and staple it to copy with an explanation. • This problem happens a lot with employees in remote locations.

Employees Who are Unauthorized to Work • What if during internal I-9 form, employee admits he is not work-authorized or it is otherwise determined that an employee is not work-authorized; • Employer should provide these employees a reasonable amount of time to address their failure to be able to produce document(s) establishing their work authorization. ICE/OSC’s Guidance does not state what is an acceptable time period; instead, the reasonableness of a timeframe. Employer should not summarily discharge employees without providing a process for resolving the issue.

Employees with False ID • In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has subsequently presented acceptable documentation(s), the law does not require termination of employment. • An employer may continue to employ the employee upon completion of a new I-9 form noting the authorizing document(s), and should attach the new I-9 form to the previously completed I-9 form together with a signed and dated explanation. • Although not stated by ICE/OSC Guidance, an employer may enforce any honesty policy, if it has been consistently applied in similar situations, by terminating that employee for violating the policy.

Immigration Compliance Policy • When internal audit of I-9 forms is performed, it should include drafting of Immigration compliance policy which covers: • Who is in charge of immigration compliance? • Does company retain supporting documentation? • Does company use E-Verify? • Is company required to use E-Verify by state law or FAR E-Verify? • Retention policy – 1 year from termination or 3 years from original hire, whichever is longer; • Who to contact if ICE or other federal agency show up at worksite?

Immigration Compliance Policy (cont’d) • Rules for working with outside contractors; • Required training for employer reps completing I-9 forms; • Zero tolerance policy for employment of individuals who cannot comply with work authorization rules; • Timing & procedures for regular internal I-9 audits; • Rules on who has access to I-9 records; and • Re-verification procedures for employees with Employment Authorization documents.

About Mr. Buchanan Bruce E. Buchanan is a founding partner of Sebelist Buchanan Law. He represents employers in various aspects of immigration law, with a special emphasis on immigration compliance, and employment/labor law. He received his J.D. from the Vanderbilt University in 1982. Before going into private practice, Mr. Buchanan served as senior trial specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Law Professor at William H. Bowen UALR School of Law. Mr. Buchanan is co-author of a new book, The I-9 and E-Verify Handbook, 2d. ed. He also writes on employer immigration compliance issues on his own blog, located at www.EmployerImmigration.com, and HR Professionals Magazine. Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.

The New ICE May be after your Company American Payroll Association