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Elise A. Fialkowski Kate Kalmykov Klasko, Rulon, Stock & Seltzer, LLP

Increased Immigration & Worksite Enforcement: Strategies and Solutions to Weather the Perfect Storm. Elise A. Fialkowski Kate Kalmykov Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 John F. Kennedy Blvd., 17 th Floor 317 Madison Ave., Suite 1518

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Elise A. Fialkowski Kate Kalmykov Klasko, Rulon, Stock & Seltzer, LLP

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  1. Increased Immigration & Worksite Enforcement: Strategies and Solutions to Weather the Perfect Storm Elise A. Fialkowski Kate Kalmykov Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 John F. Kennedy Blvd., 17th Floor 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840 www.klaskolaw.com

  2. Elise A. Fialkowski, Esq. • Elise Fialkowski is a Partner at Klasko, Rulon, Stock & Seltzer, LLP and she has been providing immigration assistance and solutions to leading universities, research institutions, multinational corporations and individuals for over 15 years.  • Elise leads the firm’s worksite compliance group. Elise has particular expertise in advising employers with regard to worksite compliance with the Immigration Reform and Control Act including I-9 Employment Eligibility verification, E-Verify and worksite enforcement issues. An active member of the American Immigration Lawyers Association, Elise has served on AILA’s E-Verify Liaison Committee and she is on the Executive Committee of its Philadelphia Chapter as well as the Philadelphia USCIS Liaison Committee. • 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).

  3. Kate Kalmykov, Esq. • Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration.  • Kate regularly works with corporate clients, hospitals and universities on providing creative immigration solutions to visa and work authorization needs of foreign nationals including skilled workers, persons of extraordinary ability, managers and executives, professionals, treaty investors and traders, as well as corporate trainees. • Kate received her J.D. from the American University and is admitted to practice in New York and New Jersey.  • A member of the American Immigration Lawyers Association, Kate chairs the New York CLE Committee and serves as Secretary of New York District Office Liaison Committee.

  4. Overview • Increased I-9 Enforcement and Penalties • Criminal Enforcement and ICE • E-Verify and Data Mining • Information Sharing Agreements-USCIS, ICE and OSC • OSC Discrimination Claims • Fraud Detection and National Security (FDNS) Investigations • Practical Strategies and Best Practices to Protect your Company NOW

  5. Increased I-9 Enforcement • Background–Form I-9 • Immigration Reform and Control Act (“IRCA”) requires employers to verify identity and employment eligibility of employees hired after 11/6/86 • Section 1-Employee Information and Verification- must be completed by the employee at the “time of hire” –1st day of work • Personal information • Attestation as to status

  6. Increased I-9 Enforcement • Background–Form I-9, cont’d • Section 2-Employer Review and Verification- must be completed by the employer within “3 business days of date employment begins” • Review Original documents that show identity and employment eligibility • List of Acceptable Documents – one document from List A or one document from List B and one from List C • Do NOT accept more than is required or request specific documents • Record title, issuing date, authority, doc. no., expiration • Documents must appear to (1) be reasonably genuine and (2) relate to the individual presenting them –Attestation

  7. Increased I-9 Enforcement • Background–Form I-9, cont’d • Section 3 – Updating and Verification (or new Form I-9) • For time-limited work authorization • Reverify on or before expiration of work authorization – documentation of continued work authorization • Can NOT ask for a specific document • Establish “tickler” system – at least 120 days notice • Do NOT reverify an expired US passport or Permanent Resident card

  8. Increased I-9 Enforcement • New ICE Worksite Compliance Strategy • Raid v. audit/investigation - NOI • Focus on Employers • Pledge to continue active criminal prosecution of employers • Pledge to issue detailed investigation protocols • Support E-Verify/system improvements

  9. Increased I-9 Enforcement (cont’d) • ICE Implements Strategy – Since 1/2009 • More than 3200 employers audited • Over $50 million fines • Average employer fine $110,000 • 180 business owners, managers, supervisors criminally charged • 225 companies debarred from federal contracts

  10. Increased I-9 Enforcement (cont’d) • Calculation of penalties-12/09 Fine Guidance Issued • Penalty knowing hire/employ: $375-$16,000 per employee • Penalty substantive/technical violations: $110 to $1,100 per violation • “Violation percentage” and base fine amount • Enhancement/Mitigation Factors • Example • Abercrombie > $1 million fine 09/10

  11. Increased OSC EnforcementNon-Discrimination in I-9 Process • OSC-Office of Special Counsel for Immigration Related Unfair Employment Practices created w/IRCA • Enforces citizenship/immigration status discrimination, national origin discrimination, document abuse and retaliation • Civil penalties: • Citizenship/national origin discrimination $374-16,000 • Document abuse -$110-$1,100 • Back-pay & injunctive relief

  12. Increased OSC EnforcementNon-Discrimination in I-9 Process • Recent increased enforcement • Catholic Healthcare West – 11/10 largest ever civil penalty >$257,000 • John Jay College- OSC sought $1100 per employee (settled 2010) • Hoover Vacuum 2010 settlement-$10,200 (expired green card) • Garland Sales, Inc.-7/8/10 suit alleges different and greater reqs-non-US Citizens/retaliation • Maricopa Community College-8/30/10 suit alleges college imposed greater requirements on at least 247 non-US citizens • Other actions – broad range businesses-landscaping, pool, beauty (cont’d)

  13. Avoiding Discrimination Claims • Immigration law (IRCA) prohibits discrimination in hiring and discharging based on national origin or citizenship status • Do Not use the I-9 process to pre-screen for hiring • Only I-9 after written offer or on first day • DO show the full list of acceptable documents • Do NOT request specific documents • Do NOT require more/different documentation for non-citizens/those appearing foreign • Do NOT require more than 1 List A or List B &C combination

  14. Simple One Page Form?

  15. Audited I-9

  16. ICE – I-9 Best Practices • Written I-9 policy • Internal compliance & training program • Require I-9 process only by those trained • Secondary review for each I-9 • Annual I-9 audits by external auditing firm or trained person not involved in I-9 process • Protocol to respond to tips/information/constructive knowledge • Polices/procedures safeguard against discrimination incl. training • Maintain copies of documents • (E-Verify/SSNVS)

  17. Electronic I-9 Program • Many providers • Abercrombie & Fitch • Do NOT have to use E-Verify but many provide link should desire • USCIS reports they are developing their own Electronic I-9

  18. Electronic I-9 Program (cont’d) • Benefits vary depending upon provider and functionality of program • Time-saving: data does not have to be reentered for E-Verify • Alerts as to missing fields, inconsistent information and dates • Tickler system for reverification • Links to HR system • Tools to easily purge I-9s consistent with retention requirements • Paperless “green option” — electronic signature, electronic retention and scanning

  19. Electronic I-9 Program (cont’d) • Help features/pop-ups to assist with process/explain documents • Reminder emails to designated HR staff • Customization-configured to company’s business processes • Immediate updates with changes in Forms/policy • Support for program/E-Verify

  20. E-Verify Compliance Issues • The Basics • Electronic employment eligibility verification system • Checks I-9 information against SSA and DHS databases • Voluntary unless required by state law or federal contractor rule • E-Verify required by State law • All employers: AZ, MS, UT, SC* • Contractors: CO, GA, MN, MS, MO, NB, OK, RI, SC, UT • Public employers: AZ, GA, MN, MS, MO, NB, NC, OK, RI, SC, UT, VA

  21. E-Verify Compliance-Is Enrollment Required? (cont’d) • Federal Contractor Rule- “contractors” and “subcontractors” required to enroll • Contractors • Contract must be issued after 9/8/09 or amended IDIQ contract • Must be Acquisition Contract subject to FAR w/performance longer than 120 days and value above $100,000 • Contract must include “E-Verify clause” • Subcontractors • Subcontract must flow from prime contract with E-Verify clause • Only for subcontracts for Services or Construction w/value over $3,000

  22. E-Verify ComplianceFederal Contractor Rule • General rule • Requires E-Verify query of: • All new hires, and • All existing employees assigned to the contract, or • 180 day option for all existing employees • Exemptions university • May opt to only verify: • New hires assigned to contract, and • Existing employees assigned to contract (cont’d)

  23. E-Verify Compliance (cont’d) • Main Employer Responsibilities – MOU • Post notices • Agree to visits by ICE and/or designees • Attach results to Form I-9 and retain for same time as form • Rebuttable presumption of compliance if confirmation is obtained • Notify DHS if continues to employ following non-confirmation (civil penalties $550-$1,100 for failure to notify) • If continued employment after Final Non-Confirmation a rebuttable presumption of violation of INA § 274A(a)(1)(A) is created • Can only leave with 30 days notice

  24. E-Verify Compliance General Guidelines • Not a substitute for I-9 compliance • Does not provide protection against worksite enforcement • Cannot be used to pre-screen • Can only be used to verify eligibility of newly hired employees unless federal contractor • Queries must be conducted within 3 days after hire • List B documents must have a photo • Must copy green card, EAD and passport

  25. Verification of Eligibility • What you need: • Information from Section 1 and 2 from the Form I-9 • Identification document provided from List “B” must contain a photograph • Results • Confirmation • Tentative Non-Confirmation • Final Non-Confirmation

  26. Advantages of Using E-Verify • Rebuttable presumption of compliance if confirmation is obtained • Swift Meatpacking case – no corporate fines for 1,000+ unauthorized workers • Allows employer to query system re validity of documentation • Saves time/training by identifying unauthorized workers prior to no-match • 17 month STEM extension

  27. E-Verify ComplianceDisadvantages of Using E-Verify • Problems with underlying databases • Limited to new hires (except federal contractors) • No formal appeals process for non-confirmations • Additional HR and company time for process in addition to I-9 • Access to I-9s and related records (cont’d)

  28. E-Verify ComplianceData Mining & Data Sharing • Memorandum of Agreement- MOA • 12/08 USCIS MOA with ICE • 3/10 USCIS MOA with Office of Special Counsel (OSC) • Data mining/audits • Compliance Tracking & Monitoring System, staff • Examples: completion w/i time-line, terminate TNC, failure notify FNC, selective use, fraudulent use, etc. • Referral to ICE and OSC (cont’d)

  29. Practical I-9 and E-Verify Compliance Considerations • Audit of older I-9s • I-9 issues with existing employees under Federal Contractor Rule / choosing among the options • Tracking employees who are on a contract • Who conducts queries/handles non-confirmations • I-9 and E-Verify policies • Training plan—including non-discrimination training • Electronic I-9 program

  30. H-1B LCA Audits • Increased DOL enforcement – Wage and Hour division • Civil fines, back pay and debarment • Criminal enforcement

  31. H-1B Site VisitsBackground • Visits (generally unannounced) to employers who have filed or have approved H-1Bs or other petitions • USCIS announced at least 20,000 this year • Conducted by Fraud Detection and National Security Unit (FDNS) officers or contractors hired by FDNS

  32. H-1B Site VisitThe Mechanics • Unannounced, scripted interview • Will ask to see signatory • Verify information in H-1B petition from employer • Business operations, locations, employees • Information about H-1B employee including title, job duties, credentials, salary work location

  33. H-1B Site VisitThe Mechanics • Photograph facility • Tour facility, department or workplace • May request paystubs/W-2s, financials or job description, resumes, etc. (cont’d)

  34. H-1B Site VisitThe Mechanics • Generally will ask to see employee • Verify position, title, duties, salary, location and requirements • Whether employee paid/reimbursed any money related to H-1B • Photo ID • May ask to see supervisor or other employees (cont’d)

  35. H-1B Site VisitWhat do we do if we are visited by an Investigator? • Appoint a trained, designed company representative and backup • Request identification • Lead to a conference room or neutral space

  36. H-1B Site VisitWhat do we do if we are visited by an Investigator? • Respond to questions – don’t guess • Detailed written notes • Immigration/in-house (cont’d)

  37. H-1B SiteHow do we prepare? • Inform staff of USCIS visits • Appoint a trained, designated company representative with appropriate back-up • Maintain immigration documents in central location

  38. H-1B SiteHow do we prepare? • Have immigration counsel’s contact information handy in case problems arise • Educate all H-1B employees about the possibility that they will have to meet with FDNS investors • Conduct periodic internal audits of H-1Bs • Regularly train personnel on H-1B regulations and requirements (cont’d)

  39. Links • The Form I-9:http://www.uscis.gov/files/form/i-9.pdf • The M-274 Handbook for Employers: http://www.uscis.gov/files/form/m-274.pdf

  40. For further information or to request a on-site presentation, please contact: Visit us online: www.klaskolaw.com www.worksite-compliance.com http://blog.klaskolaw.com • Elise A. Fialkowski, Esq. • Tele: 215.825.8647 • Fax: 215.825.8699 • E-mail:efialkowski@klaskolaw.com • Kate Kalmykov, Esq. • Tele: 212.796.8856 • Fax: 212.297.1799 • E-mail:kkalmykov@klaskolaw.com

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