© 2010 Jackson Lewis LLP Understanding the Changing Immigration Landscape – Preventive Strategies in Corporate Immigration Compliance Davis C. Bae (206)

Introduction 11,000,000 people are in the United States without Documentation Approximately 4-6% of the workforce 50% of H-1B filings were denied for lack of visas Indian and Chinese professionals may wait 20 years for immigrant visas The question is not whether we should fix the system but how and when? What does this mean for employers?

What did Obama announce? Executive Action is the use of administrative authority and discretion to execute the law. Enhancing border security measures. Changing the focus of removal targets. Assistance with business immigration. Increased opportunities for entrepreneurs. Expansion on Deferred Action.

Deferred Action Deferred Action on Childhood Arrivals (DACA) Must have arrived by 16 th birthday and continuously lived in U.S. since January 1, Graduate high school or have GED or be in school. No convictions of felonies and certain criminal offense. Deferral Action for Parental Accountability (DAPA) Must be in the U.S. continuously from January 1, Must have U.S. Citizen or Permanent Resident Children. No convictions of felonies and certain criminal offenses.

Legal Challenges 17 States initially sued President Obama for going beyond presidential authority. 12 States have filed briefs in support the Executive Action. State actions to deter use of deferred action. Congress threatens to defund immigration. Congress is attempting to pass its own bill. Future presidents could theoretically take opposing executive actions.

Effect on Employers Increased clarity on business immigration needs Changes in identity of employees Potential Fraud Investigations State-by-state inconsistencies Protections by unions

I-9 Strategy and Tactics Nationalizing I-9 Audits ICE Employment Compliance Inspection Center in Crystal City, Virginia Coordinated waves of I-9 NOI Bar Coding and employee data collection Increase in the applications for S and U Visas USCIS Compliance Tracking and Management System

I-9 Civil Fines Knowingly Hire/Continuing to Employ First Offense -$375 to $3,200 per violation Second Offense - $3,200 to $6,500 per violation More than 2 offenses - $4,300 to $16,000 per violation Substantive/Uncorrected Technical Paperwork Violations $110 to $1,100 per violation depending upon number of offenses and level on non-compliance

Introducing the New Form I-9 Released March 8, 2013 Older versions permitted for 60 days Must begin using new form by May 7, 2013 Must also be used for reverification and rehires Available at

Who completes the I-9? Employers must complete Form I-9 for all employees hired after November 6, I-9s are not required for: Workers not directly employed (volunteers or independent contractors)* Persons transferring within company Rehires returning within 3 years of completing initial I- 9* Employees returning after a leave of absence, labor strike or dispute, or a return for seasonal employment

When does the I-9 need to be completed? The I-9 may be completed as soon as there is an offer and acceptance of employment Section 1 must be completed by the employee no later than the day that the employee begins work (*hire date not always the same as start date) Employee must provide document(s) for verification and Employer must complete Section 2 within three days, else employee must be removed from payroll

The I-9: Three Little Sections Section 1: Employee biographical info and employee certification as to basis for work eligibility. Section 2: Employer’s verification that employee presented documents to prove identity and work eligibility and that Employer reviewed them. Section 3: If employee’s authorization to work is set to expire during employment, employer verifies and records authorization renewal. Also used for rehires.

The New Form I-9 13

14 The New Form I-9

15 The New Form I-9

16 The New Form I-9

17 The New Form I-9

18 The New Form I-9

Properly Completed Section 1

Previous I-9: Section 1 Employee biographical info & employee certification as to basis for work eligibility.

. Properly Completed Section 1

Properly Completed Section 2

Employer’s verification that employee presented documents to prove identity and work eligibility. Previous I-9: Section 2

. Properly Completed Section 2

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Acceptable I-9 Documents The employee is required to present either: 1 document from List A -OR- 1 document from List B -AND- 1 from List C A complete list of documents can be found in the I- 9 Instructions. Employers CANNOT specify which documents they will accept. Employers must accept any document that appears genuine on its face.

Items for “List A” Items in List A establish both identity and employment eligibility. Acceptable items include:  US Passport  US Permanent Resident Card  Unexpired foreign passport with I-551 stamp or machine printed visa with I-551 notation  Employment Authorization Document (EAD) that contains photo  Unexpired foreign passport with matching I-94 card that authorizes the alien to work for the employer

Items in List B establish identity only Acceptable items include:  US drivers license or ID card with photograph  A Federal ID card with photograph  A school ID card with photograph  A voter registration card  A military ID or military draft record Items for “List B”

Items in List C establish employment eligibility only. Acceptable items include:  US Social Security card (that does not state that the card is not valid for employment)  US birth certificate  An EAD with no photo Items for “List C”

An employee may present a receipt for a replacement of a lost, stolen, or damaged document A receipt fulfills the verification requirements of the document for which the receipt was issued (can be List A, List B, or List C) The receipt is valid for 90 days from date of hire or, for reverification, the date employment authorization expires. At the end of the 90 days, the employee must present the actual document for which the receipt was issued Receipts

Reasonable Person Standard genuinerelate The I-9 states that you must review the original documents presented to determine if they are “genuine” and “relate” to the person presenting them to you. Document Acceptance Standards

Reasonable Person Standard Does the document appear valid on its face? Would a “reasonable person” believe this document to be authentic?

Document Acceptance Standards Reasonable?

Examples: Newest Permanent Resident Card

Examples: Common Permanent Resident Card

Examples: Employment Authorization Document

Examples : I-94 Card with Visa Stamp

Examples: I-551 Stamp

Examples: Visa / Visa with I-551 Notation

Examples: Unacceptable Social Security Cards

Properly Completed Section 3

Previous I-9: Section 3

Expired Work Authorization Properly Completed Section 3

Rehire Properly Completed Section 3

I-9 Re-verification Employees who are not US citizens or are not US permanent residents are likely working pursuant to a temporary work visa. The work eligibility will expire on a certain date, and the employer is required to note the expiration of the eligibility document on the I-9. The employer must update the I-9 before the document expiration date, and must re-verify that the worker’s eligibility has been extended. Generally, only expiring employment eligibility documents need to be re-verified, not expiring identification documents.

I-9 Recordkeeping Requirements Employers must keep an I-9 for all current employees For terminated employees, must keep for the later of:  3 years from employment start date -OR-  1 year after termination Federal I-9 law does not require employers to retain copies of the verified documents; however, some states require that you do. E-Verify also requires certain documents to be retained. Should I keep copies of the documents?  On one hand, it shows a good faith effort on the part of the employer to comply with verification requirements  On the other, the government has additional evidence to prosecute you with for any mistakes that you make

Common I-9 Violations Substantive Violations Failure to complete Form I-9 for each new hire Failure to produce for each new hire in audit Lack of employee signature in Section 1 of Form I-9 Lack of employee status attestation in Section 1 Multiple employee status checks in Section 1 Lack of employer attestation and signature in Section 2 Improper document description in Section 2 Failure to complete Section 2 certification and enter date of hire within three (3) days of hire

Discrimination and Document Abuse Prohibited Conduct Under the INA’s Anti-Discrimination Provision at 8 USC 1324b. o Citizenship Status Discrimination o National Origin Discrimination o Document Abuse o Retaliation

Office of Special Counsel The Office of Special Counsel has been charged with protecting employees from citizenship and nationality discrimination. This includes reviewing E-Verify data to determine if there is a basis for patterns of discrimination. Statistical anomalies may result in OSC audits which are far more detailed than I-9 audits. 59

Pandora’s Box of issues Social Security Administration Securities and Exchange Commission Union Negotiations Subcontractor Liability Foreign Corrupt Practices Act Federal Contract Debarment EAR/ITAR

Preparation Review your honesty provisions in employee handbooks. Review internal immigration compliance policies Conduct an I-9 audit Provide training to managers to avoid obtaining actual knowledge of employee status Consider providing information on immigration reform to avoid questions that lead to actual knowledge of status Consider E-Verify