Elise A. Fialkowski, Esq.

1. Worksite Enforcement discussion leader Elise A. Fialkowski, Esq.

2. Overview - Brave New World for Employers • New government enforcement priorities and techniques; • Penalties for non-compliance, including criminal liability; • Impact of State and local laws; • Social security no-match letters; • Choosing whether to participate in voluntary government programs (E-Verify, IMAGE).

3. ICE Enforcement Strategy • Recent ICE enforcement initiatives—audit v. raid • Increased civil fines coupled with criminal penalties • ICE has the authority to use wiretaps • ICE has the authority to establish and operate undercover investigations • ICE utilizes confidential informants • ICE coordinates with IRS, DOL and other agencies

4. Impact of State and Local Laws • As of December 31, 2007, at least 1562 pieces of legislation related to immigrants had been introduced among the 50 state legislatures – of the 240 that became law – 29 effect employment in approximately 20 states. • Companies that knowingly hire illegal workers may face: • Possible loss of business licenses – Arizona, Tennessee, West Virginia • Possible loss of government grants and contracts – Arkansas, Colorado, Delaware, Georgia, Idaho, Iowa, Massachusetts, Minnesota, Oklahoma, Pennsylvania, Tennessee, Texas • Some states require E-Verify while Illinois prohibits it.

5. “No-Match” Regulations • DHS/ICE issued regulations on August 15, 2007 to be effective September 14, 2007—constructive knowledge receipt of Social Security no match letter or Written notice from DHS • Prior to effective date, the U.S.D.C. for the Northern District of California enjoined the implementation • On March 21, 2008 - DHS Supplemental Proposed Rule • On March 24, 2008 the Office of Special Counsel issued Antidiscrimination Guidance

6. Social Security “No Match” Regulation • “Reasonable steps” to rebut constructive knowledge presumption (“safe harbor”) • Within 30 days: employer check/correct records and inform SSA/DHS • Within 90 days: if employer records correct, request employee confirmation • If employee corrects record, employer correct and inform SSA • If employee states employer records correct, employee must resolve discrepancy with SSA within 90 days

7. Social Security “No Match” Regulation • If unresolved after 90 days, new I-9 must be completed by the 93rd day. • Employer cannot accept the following: • Any document referenced in written notice • Any document with disputed social security or alien number • Any receipt for replacement of such document • Employee must present a document with a photograph • If not, terminate (cont’d)

8. Choosing Whether to Participate in Voluntary Government Programs • E-Verify • Checks social security number against national databases-SSA & DHS • New photo screening tool • Voluntary program (at least on federal level at this time) • Requires Employer to agree to MOU with DHS and SSA w/significant obligations

9. E-Verify Memorandum Of Understanding • Main Employer Responsibilities • 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 $500-$1,000 for failure to notify) • If continued employment after Final Non-Confirmation a rebuttable presumption of violation of INA § 274A(a)(1)(A) is created

10. General Guidelines for E-Verify • 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 • Queries must be conducted within 3 days after hire • You can leave the E-Verify program only after 30 days notice

11. Guidelines for E-Verify (cont’d) • What you need: • Information from Section 1 and 2 from the Form I-9 • Employees name • Date of Birth • Social Security Number • Citizenship Status employee attest to • A# or I-94 # if applicable • Expiration dates for identification and eligibility documents • Identification document provided from List “B” must contain a photograph

12. Results • Confirmation – GREEN LIGHT • Record the case verification number of Form I-9 or attach printout of result screen. • This ends the process - Obligation to re-verify remains for time limited authorizations. • Final Non-Confirmation – RED LIGHT • Record the case verification number of Form I-9 or attach printout of result screen

13. Results (cont’d) • Tentative Non-Confirmation – YELLOW LIGHT • System cannot perform immediate match • NOT grounds for termination • Follow up steps: • Double check input date to ensure no errors (if errors are found run SSA query again) • Record case verification number • Inform employee of tentative non-confirmation

14. Results (cont’d) • Inform employee he/she has the right to contest non-confirmation with SSA or DHS • If employee does not contest – YOU MUST TERMINATE EMPLOYMENT • If employee contests –must provide with a referral letter to SSA or refer to contact DHS. Employee has 8 Federal Working Days to resolve discrepancy with SSA/DHS (unless SSA/DHS extends) • On the date that is 10 Federal Working Days after the date of the referral you must query the system again.

15. Advantages of Using E-Verify • Rebuttable presumption of compliance if confirmation is obtained—Swift • Allows employer to query system re validity of documentation • For employers with higher percentage of undocumented workers or greater use of fraudulent documents, saves time/training by identifying unauthorized workers prior to no-match

16. Disadvantages of Using E-Verify • Significant problems with underlying databases • Potential waiver of 4th Amendment protections • Limited to new hires • No safe harbor from worksite enforcement • SSA may not extend 8-day resolution period • No formal appeals process • Continued employment after final non-confirmation results in rebuttable presumption of violation

17. Disadvantages of Using E-Verify (cont’d) • Penalty of $500 to $1000 for each failure to notify of continued employment after final non-confirmation • Insufficient protection from discrimination claims • Value/impact of new photo tool questionable • 30 day notification period to withdraw • Issue as to whether system can handle increased volume • Add’l HR and company time for process in addition to I-9

18. IMAGE-Choosing Whether to participate in Voluntary Government Program • ICE Mutual Agreement between Government and Employers (“IMAGE”)(www.ice.gov/partner/opaimage) • I-9 audit by ICE • Verify social security numbers of existing workforce • ICE training and education • Commit to ICE “best practices” • Establish “tip line” to ICE • Does not ensure against raid, investigation, fine or criminal action

20. Speaker Contact Information • H. Ronald Klasko, Esq. • Tele: 215.825.8608 • Fax: 215.825.8699 • E-mail:rklasko@klaskolaw.com • Richard R. Rulon, Esq. • Tele: 215.825.8612 • Fax: 215.825.8699 • E-mail:rrulon@klaskolaw.com • William A. Stock, Esq. • Tele: 215.825.8607 • Fax: 215.825.8699 • E-mail:wstock@klaskolaw.com • Suzanne B. Seltzer, Esq. • Tele: 212.796.8846 • Fax: 212.297.1799 • E-mail:sseltzer@klaskolaw.com cont’d…

21. Speaker Contact Information • Elise A. Fialkowski, Esq. • Tele: 215.825.8647 • Fax: 215.825.8699 • E-mail:efialkowski@klaskolaw.com • Theodore J. Murphy, Esq. • Tele: 215.825.8646 • Fax: 215.825.8699 • E-mail:tmurphy@klaskolaw.com Visit us online at www.klaskolaw.com