Elise A. Fialkowski, Esq. Worksite Enforcement discussion leader

Klasko, Rulon, Stock & Seltzer, LLP 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).

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP 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.

Klasko, Rulon, Stock & Seltzer, LLP “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, DHS Supplemental Proposed Rule On March 24, 2008 the Office of Special Counsel issued Antidiscrimination Guidance

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP Social Security “No Match” Regulation  If unresolved after 90 days, new I-9 must be completed by the 93 rd 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)

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP Guidelines for E-Verify 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 (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP Results Tentative Non-Confirmation – YELLOW LIGHT  System cannot perform immediate match  NOT grounds for termination  Follow up steps: 1. Double check input date to ensure no errors (if errors are found run SSA query again) 2. Record case verification number 3. Inform employee of tentative non-confirmation (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Results 4. Inform employee he/she has the right to contest non- confirmation with SSA or DHS 5. If employee does not contest – YOU MUST TERMINATE EMPLOYMENT 6. 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) 7. On the date that is 10 Federal Working Days after the date of the referral you must query the system again. (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP Disadvantages of Using E-Verify 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 (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP IMAGE-Choosing Whether to participate in Voluntary Government Program ICE Mutual Agreement between Government and Employers (“IMAGE”) ( 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

Klasko, Rulon, Stock & Seltzer, LLP

Speaker Contact Information H. Ronald Klasko, Esq.  Tele:  Fax:  Richard R. Rulon, Esq.  Tele:  Fax:  William A. Stock, Esq.  Tele:  Fax:  Suzanne B. Seltzer, Esq.  Tele:  Fax:  cont’d…

Klasko, Rulon, Stock & Seltzer, LLP Speaker Contact Information Elise A. Fialkowski, Esq.  Tele:  Fax:  Theodore J. Murphy, Esq.  Tele:  Fax:  Visit us online at