DELVACCA presents 2010 Update on Immigration and Employer Compliance February 11, 2010

1. DELVACCA presents 2010 Update on Immigration and Employer Compliance February 11, 2010 Sponsored by: Lori E. Halber, Esq. Lori E. Halber, Esq. halberl@jacksonlewis.com 267-319-7817(o) Robert C. Seiger, Esq. seigerr@jacksonlewis.com 267-319-7805 (o)

2. Part 1 – Worksite Enforcement

3. Pre-Obama Era “Unleash the Hounds!” • White House: Announces enforcement initiatives • DHS: More worksite for ALL employers • DOL: More stringent review of labor cert. petitions • ICE: More complex investigations • ICE: Increasing the cost of doing business

4. Immigration Inflation: Increasing the Cost of Doing Business • Increased I-9 audits • Criminal indictments & grand juries • Large-scale raids • Publicizing raids and indictments • Criminal search warrants • Asset forfeiture • Federal contract debarment

5. DHS Rhetoric? - The “Numbers” • Over 1,100 criminal arrests tied to worksite investigations; • Over 5,100 administrative (deportation) arrests; • Indicted 135 business owners, managers, supervisors or human resources employees for criminal offenses including harboring, smuggling, and money laundering; • Largest single site worksite operation at a Howard Industries’ plant in Laurel, Mississippi, resulting in arrest of over 600 employees; • Over $30 million in criminal fines, restitutions, and civil judgments in worksite enforcement cases; • Record $20.7 million settlement; and • For the first time, debarring seven companies from federal contracting.

6. The Genesis of an ICE Investigation • Tips from employees and public to ICE hotlines • Unions becoming increased source of tips to ICE • Non-response to hotline/ethics calls • Social Security No-Match letter history • Local pressures • Key industries (high turnover) • Critical infrastructure and Dept. of Defense • DOL, SSA, IRS, GSA, etc. • Temporary worker providers

7. Targeting the HR Officers and Supervisors Why me? • Funnel point in I-9 process & internal communications • Responsible for I-9 and verification • Greatest interaction between upper management and workforce • Criminal indictment pressure on HR employees may result in creation of source, informant, and/or witness

8. A Rosier Future Under Obama? • Federal Contractor E-Verify Rule mandating an estimated 160,000 contractors to use E-Verify effective September 8, 2009. • $100M in FY 10 budget for E-Verify expansion. • USCIS performing thousands of “on-site” H-1B Inspections. • On July 2, 2009, ICE issued Notices of Inspection to 652 employers requiring them to produce to ICE copies of I-9s for all employees. In announcing the initiative, ICE Assistant Secretary John Morton emphasized ICE’s commitment to worksite enforcement.  He said the audits were “a first step in ICE’s long-term strategy to address and deter illegal employment.”

9. Introducing DHS Secretary Napolitano "I expect to increase the focus on ensuring that employers of unlawful workers are prosecuted," DHS Secretary Napolitano, January 15, 2009 During her DHS Senate Confirmation Hearing

10. Role of Worksite Enforcement • Check illegal immigration • Stop Abusive and Egregious Employment Practices • Deter Criminal Activities including: • Alien Smuggling • Illegal Inducement • Harboring • Unauthorized Employment • Document Fraud • Promote national security • Protect critical infrastructure • Ensure fair labor practices

11. Re-Introducing the I-9 • It is evidence for a prosecution. • It is a prosecution tool against the employee. • It is a prosecution tool against the employer. • Guess who signs it? … Potential defendants.

12. Tips for Surviving the New Era of Worksite Enforcement • Re-acquaint yourself with I-9 process • Where are the records? • Find out about No-Match history • Procedures to create UNIFORMITY • Respond to identified risks/complaints • Prepare for the audit freeze • Training • The form • Maintenance and internal audits

13. Questions for Employers to Ask: • Do you have written policies? • Do you apply procedures uniformly? • Have you trained HR Managers? • Does payroll equal number of I-9s? • Where are the No-Match letters? • SSNVS? What happens? • Heightened review of Supervisors & HR staff? • What control over temps/recruiters? • Internal audits and corrections? • Remember: Civil Rights & OSHA • Am I using the new Form I-9 – August 7, 2009?

14. Part 2 – I-9 Refresher

15. Employment Authorization Verification: New I-9 Form • New Form I-9 went into effect on August 7, 2009 • Can still use form with revision date February 2, 2009…..until further notice! • All documents must be unexpired • Adds U.S. passport card to List A

16. Base Obligations of Employers • Properly and fully complete Form I-9 within 72 hours of employee’s start of employment: • Certain parts must be completed on day 1 • Documents must be presented within 72 hours • Listed documents must be reviewed to ensure they look authentic • Two (2) schools of thought as to whether to copy and retain back-up documents • Employers can also request to see Social Security cards on the first day of employment for payroll purposes

17. Employer Review and Certification • Employee completion of Section 1 no later than first day at work • Section 2 Must Be Completed No Later Than Three Business Days After Commencement of Employment • One Document in LIST A OR • One Document in LIST B AND One Document in LIST C • Work Start Date in Certification Bloc • Employer Representative Signature, Printed Name, Title • Business Address • Date

18. Practical Hints • Employee Authorization Verification v. Non-Discrimination • Do Not Ask For Any Documents To Substantiate Section 1 (except SS card if participating in E-Verify) • Do Not Ask For Any Particular Documents For Section 2 • Review Documents Produced For Section 2 Against Section 1 And Give Employee A Chance To Correct Section 1 • I-9 Timing And Hiring Decisions

19. Electronic I-9 • USCIS provides a Portable Document Format fillable-printable Form I-9 from its Website, www.uscis.gov. • Form I-9 can be electronically generated and retained, provided that: • The resulting form is legible; • No change is made to the name, content, or sequence of the data elements and instructions; • No additional data elements or language are inserted; • The employee receives Form I-9 instructions; and • The standards specified under 8 CFR 274a.2(e) are met.

20. Electronic Storage Requires • Reasonable controls to ensure the reliability of storage system • Reasonable controls to prevent unauthorized alteration, deletion of electronically stored I-9 (including electronic signature) • A quality control program that regularly evaluates the integrity of storage system • A retrieval system that includes an indexing system that permits searches of stored data • The ability to produce legible paper copies

21. Destroy the Originals? • Ability to fill out an original paper form I-9 and scan and upload the signed form to retain it electronically • Once I-9 appropriately stored in electronic format ---OK to destroy the original paper I-9

22. Reverifying Current Employees • When employee’s employment authorization expires (no later than date authorization expires) • You may reverify on Section 3 of current I-9 or use a “new” I-9 form • If using a “new” I-9, write employees name in Section 1, complete Section 3 and retain “new” I-9 along with the original • For reverification, employee must provide evidence of extension of initial authorization or new employment authorization

23. Reverifying Rehired Employees • If you rehire an employee within 3 years of initial date of hire you may reverify on original I-9 • Check original I-9 to ensure employee’s previous employment authorization is still valid • If not, reverify with new employment authorization

24. Part 3

25. E-Verify • E-Verify: • Formerly the Basic Pilot/Employment Eligibility Verification Program) • Operated jointly by the DHS and SSA online • Check the work status of new hires by comparing information from an employee’s I-9 form against SSA and DHS databases • More than 87,000 employers are enrolled in the program, with over 6.5 million queries run so far in fiscal year 2008 • Voluntary program for most employers - YMMV • Over 444 million records in the SSA databases and more than 60 million in DHS databases • Registered employers growing over 1,000 per week

26. Federal Contractors and E-Verify • Federal Contractors who have been awarded a contract on or after September 8, 2009 are subject to E-Verify • Your government Contracting Officer should be consulted to determine whether your contracts will include the E-Verify clause requiring compliance with E-Verify • To comply with E-Verify you must verify all NEW hires as well as all EXISTING employees assigned to the affected contract • Alternatively, you have the option of running ALL existing employees through E-Verify…as long as……ALL existing employees would need to be run through E-Verify within 180 days after notification to DHS to exercise this option

27. Which “PRIME” Federal Contracts? • Contract was awarded on or after September 8, 2009 and includes the E-Verify Clause • The contract has a period of performance that is more than 120 days • The value exceeds $100,000 • At least some portion of the work under the contract is performed in the United States

28. Subcontracts and Enrollment • Subcontracts for more than $3,000 for services or construction also qualify for the inclusion of the E-Verify clause • Enrollment in E-Verify must be within 30 days after the contract award date

29. Exemptions From E-Verify • Contracts where period of performance is less than 120 days • Value of contract is less than $100,000 • All work is to be performed OUTSIDE the United States • Contract includes only commercially available off the shelf (COTS) items

30. E-Verify versus SSNVS • Social Security Number Verification Service (“SSNVS”) is an internet based system whereby an employer can verify that employee names match Social Security records. Register at www.ssa.gov • Can only be used to verify current or former employees and only for wage reporting (W-2) purposes • Can verify up to 10 names at as time and receive immediate results

31. Part 4 - Visas

32. Impact Of Economic Downturn On Nonimmigrant Visa Status • Due Diligence • Employee status • Corporate compliance • Myriad Personnel Actions • Reductions-in-force • Benching/furloughs • Changes in compensation • Changes in position duties • Changes in job location • Changes in benefits

33. Impact Of Economic Downturn On Permanent Residence Process • Individuals PERM (Labor Certification) • Termination • Change in salary, position, job location • Entire PERM Program • Hiring “freezes” • RIF’s • Targeted Position Eliminations • U.S. Applicant Availability • DOL Scrutiny of Target Industries • Long Term Horizon • Final NIV dates