Stay Out of Jail: Immigration Compliance Issues for Employers

1. Stay Out of Jail: Immigration Compliance Issues for Employers Glen M. Krebs Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY 40507 859/288-7409 or gkrebs@wyattfirm.com

2. Stay Out of Jail • I-9 Compliance

3. Stay Out of Jail • I-9 Compliance • SSN Mismatch (No-Match Letters)

4. Stay Out of Jail • I-9 Compliance • SSN Mismatch (No-Match Letters) • E-Verify

5. Stay Out of Jail • I-9 Compliance • SSN Mismatch (No-Match Letters) • E-Verify • Undocumented or improperly documented workers – Employer Sanctions

6. Stay Out of Jail • I-9 Compliance • SSN Mismatch (No-Match Letters) • E-Verify • Undocumented or improperly documented workers – Employer Sanctions • ICE Raids

7. I-9 Compliance • Section 1 completed at time of hire

8. I-9 Compliance • Section 1 completed at time of hire • Verification docs provided w/in 3 days

9. I-9 Compliance • Section 1 completed at time of hire • Verification docs provided w/in 3 days • Evidence of current work authorization placed in reverification tickler system

10. I-9 Compliance • Section 1 completed by employee at time of hire • Verification docs provided w/in 3 days • Evidence of current work authorization placed in reverification tickler system • Section 2 completed by employer w/in 3 days of hire

11. I-9 Compliance • Do not require specific documents or more than the law requires

12. I-9 Compliance • Do not require specific documents or more than the law requires • Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination

13. I-9 Compliance • Do not require specific documents or more than the law requires • Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination • Use an adequate tickler system to reverify expiring work authorizations

14. Internal I-9 Audit • Prepare list of employees hired after Nov. 6, 1986

15. Internal I-9 Audit • Prepare list of employees hired after Nov. 6, 1986 • Separate out I-9 forms which no longer need to be maintained

16. Internal I-9 Audit • Prepare list of employees hired after Nov. 6, 1986 • Separate out I-9 forms which no longer need to be maintained • Assure that each employee has a form I-9

17. Internal I-9 Audit • Prepare list of employees hired after Nov. 6, 1986 • Separate out I-9 forms which no longer need to be maintained • Assure that each employee has a form I-9 • Review I-9 for completeness and technical mistakes and make proper corrections

18. Internal I-9 Audit • If necessary, request appropriate documentation or reverify employability

19. Internal I-9 Audit • If necessary, request appropriate documentation or reverify employability • Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time

20. Internal I-9 Audit • If necessary, request appropriate documentation or reverify employability • Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time • Prepare a file memo detailing results of audit and recommendations

21. Origin of No-Match • In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match

22. Origin of No-Match • In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match • Employer has no “affirmative duty” to re-verify Employee’s work authorization

23. Origin of No-Match • In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match • Employer has no “affirmative duty” to re-verify Employee’s work authorization • Knowingly employing undocumented workers vs. discrimination based on race or citizenship

24. DHS New Regulation • August 15, 2007 • Upon receipt of no-match letter, Employer must check its records and correct if necessary

25. DHS New Regulation • Upon receipt of no-match letter, Employer must check its records and correct if necessary • Or, Employer must request the Employee to confirm the name and SSN • if incorrect Employer must make changes

26. DHS New Regulation • Upon receipt of no-match letter, Employer must check its records and correct if necessary • Or, Employer must request the Employee to confirm the name and SSN • if incorrect Employer must make changes • if correct, Employer must advise Employee to resolve discrepancy within 90 days of receipt of no-match letter

27. DHS New Regulation • If Employee cannot resolve the discrepancy within 90 days the Employer must • Re-verify the I-9 form within 93 days of receipt of no-match letter

28. DHS New Regulation • If Employee cannot resolve the discrepancy within 90 days the Employer must • Re-verify the I-9 form within 93 days of receipt of no-match letter • Employer may not accept any document which contains the old SSN

29. DHS New Regulation • If Employee cannot resolve the discrepancy within 90 days the Employer must • Re-verify the I-9 form within 93 days of receipt of no-match letter • Employer may not accept any document which contains the old SSN • Employee’s identity must be confirmed by document containing a photo

30. DHS New Regulation • Compliance with these procedures will provide a “Safe Harbor” for Employers – they will NOT be deemed to have constructive knowledge that their Employees are undocumented

31. California District Court Enjoins Implementation – Oct. 10, 2007 • The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation.

32. California District Court Enjoins Implementation – Oct. 10, 2007 • The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation • SSA decided not to issue any no-match letters until litigation is resolved

33. DHS Supplemental Final RuleOctober 28, 2008 • DHS’s consistent, if informal, view of SSA no-match letters has been that

34. DHS Supplemental Final RuleOctober 28, 2008 • DHS’s consistent, if informal, view of SSA no-match letters has been that • SSA no match letters do not, by themselves, establish that an Employee is unauthorized

35. DHS Supplemental Final RuleOctober 28, 2008 • DHS’s consistent, if informal, view of SSA no-match letters has been that • SSA no match letters do not, by themselves, establish that an Employee is unauthorized • There are both innocent and non-innocent reasons for no-match letters, but

36. DHS Supplemental Final RuleOctober 28, 2008 • DHS’s consistent, if informal, view of SSA no-match letters has been that • SSA no match letters do not, by themselves, establish that an Employee is unauthorized • There are both innocent and non-innocent reasons for no-match letters, but • An Employer may not safely ignore SSA no-match letters, and

37. DHS Supplemental Final RuleOctober 28, 2008 • DHS’s consistent, if informal, view of SSA no-match letters has been that • SSA no match letters do not, by themselves, establish that an Employee is unauthorized • There are both innocent and non-innocent reasons for no-match letters, but • An Employer may not safely ignore SSA no-match letters, and • An Employer must be aware of and comply with the anti-discrimination provisions of INA

38. WHAT NEXT ?? • Nobody knows

39. WHAT NEXT ?? • Nobody knows • Prudent course of action is to implement actions described in the New Regulation

40. WHAT NEXT ?? • Nobody knows • Prudent course of action is to implement actions described in the New Regulation • But that is not necessary until the District Court’s injunction is lifted

41. E-Verify • Best means available for employers to verify electronically the employment eligibility of their newly hired employees

42. E-Verify • Best means available for employers to verify electronically the employment eligibility of their newly hired employees • Does not verify immigration status

43. E-Verify • Best means available for employers to verify electronically the employment eligibility of their newly hired employees • Does not verify immigration status • Does not protect against workplace enforcement, but does presume that employer did not knowingly hire unauthorized alien

44. E-Verify • You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors

45. E-Verify • You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors • For more information: • www.dhs.gov/e-verify • 888-464-4218

46. Enforcement • DHS – Secure Border Initiative (SBI)

47. Enforcement • DHS – Secure Border Initiative (SBI) • Civil Penalties

48. Enforcement • DHS – Secure Border Initiative (SBI) • Civil Penalties • Criminal Penalties

49. Enforcement • DHS – Secure Border Initiative (SBI) • Civil Penalties • Criminal Penalties

50. Secure Border Initiative • First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov. 2005 with increased emphasis on audits and administrative enforcement (Walmart case)