Presented by

1. You don't have to employ an "Alien" to be in trouble with USCIS and ICEIssuesin maintaining I-9 forms for U.S. Employers Presented by Nalini S. Mahadevan nmahadevan@lowenbaumlaw.com 314-746-4860 Diane E. Metzger dmetzger@lowenbaumlaw.com 314-746-4802

2. WHO IS THE ALIEN?

3. Historical Background • The Immigration Control and Reform Act of 1986 • Purpose: to ensure that only work authorized individuals are hired • Achieve this goal by requiring employment verification and imposing employer sanctions • I-9 Employment Eligibility Verification Form requires employers to attest to their employees’ work authorization

4. Who are the players? • U.S. Citizenship and Immigration Services (USCIS) www.uscis.gov • U.S. Immigration and Customs Enforcement (ICE) www.ice.gov • U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) www.osc.gov

5. The Key Players MO STATE USCIS I-9/E-VERIFY ADMIN THE EMPLOYER ICE AUDITS I-9 CHECKS WORKER STATUS OSC INVESTIGATES DISCRIMINATION YOUR CLIENT

6. USCIS • I-9 and E-verify • I-9 form is for the collection of identity and work authorization documents • All employers • Complete I-9 on 1st day of work • Keep for 3 years from date of employment -or- • For 1 year after worker leaves • Whichever is later

7. Hiring caveats • Employers must not refuse to hire anyone (for immigration/status reasons) who can show identity documents and valid work authorization • Employers cannot ask for particular documents • I-9 applies to all new hires after Nov. 6, 1986. • A few exceptions • Avoid “citizen only” hiring policies

8. Hiring and Firing Decisions • Base all firing decisions on performance and/or behavior rather than: • Appearance • Accent • Name • Citizenship status • Likewise, do not make hiring decisions based on these parameters

9. E-Verify • What is E-Verify? • Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. • http://www.dhs.gov/e-verify • When and how to use E-Verify • Complete after hiring • Not before hiring as a pre-screening tool • Don’t ask prospective employee to self verify before job offer • Not mandatory now, except under certain circumstances according to State Laws

10. ICE • Audits conducted of I-9 forms • After information received from • Local law enforcement (J & J Supply Company) • Complaint from worker (U.C.-San Diego Medical Center) • Whistleblower or information received by ICE (OSC Complaint Form) • Why do we care? • Penalties and forfeiture

11. OSC • Investigates complaints of discrimination by workers • What would you do? • Examples • (See OSC handout)

12. Example 1: • Your Crew Boss catches you before you start interviewing people for an open position. • He says, “Find out if those two near the door have their ‘green cards’ before you waste your time.” • If you do this, did you discriminate in hiring?

13. Example 2: • After hearing about the penalties for hiring undocumented workers, the CEO of your company wants to ensure that only work authorized individuals are hired. • The CEO issues a memo stating, “Please be careful when hiring people who look like they crossed the border illegally.” • Has the CEO committed National Origin discrimination?

14. Example 3: • The rainy season caused your crop yield to be less than expected, so you are forced to let some of your farm workers go. • Your choices are to either let go either Hector (a lawful permanent resident) or Jose (an asylee with a temporary work permit). • You chose to let go Jose because he only has a temporary work permit. • Have you committed citizenship status discrimination?

15. Example 4: • You gladly hire Lily who gained fashion production experience in Taiwan. • When Lily hands you a California driver’s license and an unrestricted Social Security card to complete the Form I-9, you are surprised. • You ask Lily to instead provide a document issued instead by DHS. • Have you acted lawfully?

16. Document abuse?

17. Tips and Best Practices • “But it’s just a 2 page form…” • Common mistakes • Unforeseen discrimination pitfalls

18. I-9 Discrimination pitfalls • Consider completing the I-9 only after job offer has been made • Don’t ask for a particular document • Don’t ask for more documents than required • Don’t reject a document that looks genuine • Don’t reject a document because it has a future expiration date • Don’t make “blanket” decisions to hire only U.S. workers • Do use the same procedure for all employees

19. A Hiring “Don’t”

20. E-Verify Discrimination pitfalls • Do use E-Verify for all new hires if your company has signed up, or if you are required to do so by State laws • Don’t “pre-screen” employees for verification • Don’t ask an employee to provide an E-Verify Self-Check report • Don’t go back and “double check” a current employee’s employment authorization • Don’t assume that a “TNC” means the employee is illegal or not work authorized

21. ICE Enforcement ICE Press Release 04/20/06 • “[W]hen we find those employers who don't want to do the right thing, we're going to target our criminal efforts and bring all the criminal statutes that we can to bear against them. We've learned all too well, from watching the old INS, that just a small fine or a slap on the wrist is not a deterrent to businesses who want to violate our work site enforcement laws. That's the reason that we see more robust criminal cases built against negligent employers blatantly violating the law as a much stronger deterrent. The prospect of 10 years in prison carries much sharper teeth than just a small fine.” - Julie Myers, former Assistant Secretary for ICE Enforcement Press http://www.dhs.gov/xnews/releases/press_release_0892.shtm

22. ICE Enforcement: The Facts • I-9 Audit and Notice of Inspection • 3 days notice to employers before inspection of I-9 Forms • Penalties: both Civil and Criminal • Penalties for both actual knowledge and constructive knowledge of violations • “Intentional avoidance” of I-9 rules

23. ICE Enforcement: The Figures • Nationally in Fiscal Year (FY) 2011, ICE: • Conducted 2,496 I-9 audits • Initiated 3,291 worksite enforcement cases • Criminally arrested 221 employers • Issued 385 Final Orders for $10,463,987 in fines • Debarred 115 individuals and 97 businesses, compared to 0 individuals and 0 businesses in FY 2008.

24. ICE Fines in Previous Years

25. What if I don’t comply? • ICE has increased its audits… a lot • Failure to properly complete, retain, or make the I-9 available to DHS, fine ranges from $110.00 to $1,100.00 per violation • Knowingly hire or continue to employ an illegal worker • 1st offense- $375.00 to $3,200.00 • 2nd offense- $3,200.00 to $6,500.00 • 3rd+ offense- $4,300.00 to $11,000.00 • Fines are per violation/per worker!

26. How do you look in orange? • On March 21, 2011, a St. Louis woman was sentenced to one year in prison followed by a six-month term of home confinement and two years of supervision • Charges: transporting, harboring and hiring illegal aliens to work at the Chinese restaurant she managed. • Other penalties: Authorities seized a 2008 Highlander, a 2005 Chevrolet passenger van, $34,000 in cash, and real estate worth more than $350,000 was also ordered forfeited. • http://www.ice.gov/news/releases/1103/110322stlouis.htm

27. Another twist: Marriage and Visa Fraud • Another interesting discovery during the raid… • The woman’s uncle was paid by the woman and her father to travel to China to marry a Chinese woman for the sole purpose of obtaining U.S. visas for the woman and her two children. • In exchange for the U.S. visas, the Chinese woman and her two children were bound to work for the woman and her father in the United States for three years each. • The visa applications were denied.

28. J & J Supply Inc. • The owner of J & J Supply Inc., drove five of his illegal alien employees in his 2011 Toyota Highlander to the Mexican Consulate in Kansas City to obtain Mexican Consular identification cards. • On his return trip, he was stopped for speeding in St. Charles County. • It was found that during a 12-month period, the company employed 10 or more illegal aliens • The company had to forfeit $150,000 and the 2011 Toyota Highlander used to facilitate the illegal activity. The company also received one year of probation.

29. University of California San Diego Medical Center • On January 4, 2012, the Justice Department reached an agreement with the University of California San Diego Medical Center, resolving a complaint filed on Dec. 6, 2011. • The complaint alleged that the medical center subjected newly hired non-U.S. citizens to excessive documentation requirements. • More facts to the case… • The medical center agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel, and work with government officials to ensure future compliance.

30. Krispy Kreme • Tip from the local sheriff’s office that Krispy Kreme was employing illegal aliens led to an I-9 audit • The I-9 audit confirmed this, and in Sept. 2007, a Notice of Intent to Fine was issued • In July 2009, a settlement was reached with the Krispy Kreme Corporation for $40,000 • It had 25 unauthorized workers and did not have proper I-9’s for all of its workers

31. Abercrombie & Fitch • A November 2008 I-9 inspection of A & F’s retail stores in Michigan uncovered numerous technology-related deficiencies in A & F’s electronic I-9 verification system. • No “bad faith” here, but still had to pay more than a $1 million fine. • “Employers are responsible not only for the people they hire, but also for the internal systems they choose to utilize to manage their employment process…” - Special Agent Brian Moskowitz

32. What’s an Employer to Do? • Review the company’s current I-9 practices • Consider performing an internal I-9 audit • Consider the use of E-Verify • Be vigilant when utilizing third parties to supply employees • Be especially vigilant in certain industries, but no industry is safe!

33. Thank you!Questions and Answers