1. Immigration Compliance in an Era of Worksite Enforcement Anton F. Mertens March 18, 2015 Firm/ Corp Logo

2. Mission of Pro Bono Partnership of Atlanta: To maximize the impact of pro bono engagement by connecting a network of attorneys with nonprofits in need of free business legal services.

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5. Immigration Reform and Control Act of 1986 Prohibits employers from knowingly hiring, or continuing to employ, any person not authorized to work in the United States Requires employers to verify every new employee's  - identity and  - authorization to work

6. How Does an Employer Conduct this Verification? Form I-9 Employment Eligibility Verification Form

7. Form I-9 Page 1 03/18/13 edition

8. Form I-9 Page 2

9. List of Acceptable Documents The M-274 Handbook for Employers is available at www.uscis.gov/files/form /m-274.pdf

10. Section 1 – Employee Information  - Changes to Last and First Name Fields  - Maiden name has become "Other Names"  - No PO Boxes  - Only border commuters may use international address  - Email address and telephone number

11. Section 1  Completed by the employee on or before the first day of work  Attests, under penalty of perjury: Not an unauthorized "alien" and Documents presented both are genuine, and relate to the employee (i.e., are truly the employee's own documents)

12. Section 1 - Attestation  - "A Number" vs. "USCIS Number"  - Foreign Passport Information  - More defined signature box

13. Section 1 – Preparer/Translator  - Separate fields for last name and first name  - Separate fields for address  - "Stop Sign" at the bottom of the page

14. Section 2 – Employer Review Employee name must be provided List A "third document" fields added List B/C document spaces now have captions First day of employment has been clarified and made more prominent New form has separate fields for employer address

15. Section 2 - Employer  Completed by the Employer on or before third business day of work  Attests, under penalty of perjury: Examined the employee's original documents Documents "appear on their face to be genuine" and to relate to the employee To the best of the employer's knowledge, the employee is authorized to work in the United States

16. Section 2 - Employer  Identity and Work Authorization List A (Both) or List B (Identity) and List C (Work Authorization)  At the Employee's option  Suggestion: Have employee review page 9 of the I-9 form before presenting documents

17. Verification Documents  Must be Original Documents Copies are never acceptable! Same employer representative reviews documents and signs Section 2

18. Documents Must “Appear on Their Face to Be Genuine”  Reasonableness rules!  Employers are not document-fraud experts  Match the biographic data to the actual employee  Check for consistent type style

19. Receipt Rule  Receipt showing application for a replacement List A, B or C document, because lost, stolen, or damaged, is acceptable, but must present actual document within 90 days  Receipt showing application for initial work authorization or extension is usually not acceptable

20. Section 3 – Reverification & Rehires  - Relabeled "Reverification and Rehires  - New field: "Print Name of Employer or Authorized Representative"  - Formatting changes to be consistent with the rest of the form

21. Section 3 - Reverification  Required for alien with temporary work authorization  Monitor expiration dates  Reverify I-9 on or before expiration of work authorization  Establish internal tickler system

22. Copying Documents?  Permitted, not required  Consistency – all or none  If copying, copies must be kept attached to relating I-9 form  Recommendation: DO NOT COPY

23. I-9 Retention Rules »  Keep for 3 years or 1 year after termination, whichever is longer  Keep I-9 records separate from other personnel records

24. What Can I Ask?  An employer may limit its hiring policy to persons with current employment authorization.  To make such a determination, the Office of Special Counsel has endorsed the following set of questions:  1) Are you legally authorized to work in the United States? (Check yes or no)  2) Will you now or in the future require sponsorship for employment visa status? (Check yes or no)

25. E-Verify Program  Began in 1997 in a few high-immigrant states and later expanded nationwide  Available through USCIS web site: www.uscis.gov/e-verify  Program takes I-9 information and compares it to SSA and DHS records, giving one of three outcomes: Employment Authorized. SSA Tentative Non-Confirmation. DHS Verification in Process.  More than 500,000 employers are using E-Verify, but it is increasingly REQUIRED by state law.  Also available in Spanish!

26. Georgia Immigration Law  HB 87 - Illegal Immigration Reform and Enforcement Act of 2011.  This bill mandates use of E-Verify in Georgia for employers with 11 or more employees on July 1, 2013.

27. TOP 10 I-9 Compliance Mistakes

28. #10 I-9 Records Not Segregated From Other Personnel RecordsCONFIDENTIAL

29. #9 Failure to Monitor Expiration of Temporary Work Authorization

30. #8 Mishandling Photocopying of Verification Documents

31. #7 Employer Accepts Documents That Do Not "Appear on Their Face" to Be Genuine

32. #6 Employer Accepts Photocopies of Employee's Verification Documents

33. #5 Failure to Complete the Section 2 Employer Certification Block

34. #4 Overdocumentation

35. #3 Employee Fails to Complete Section 1 “Status” Block

36. #2 Pages of Form I-9 become separated

37. #1 Failure of Employee and/or Employer to Sign and Date I-9 Form in a Timely Fashion

38.  On November 20, 2014, President Obama announced his “immigration accountability executive action.”  Some provisions of the Executive Order could be helpful to employers, especially those who depend on foreign workers to fill key positions in their operations.  Other provisions could make life a little harder for employers because of increases in regulatory oversight of employment practices.  On February 16, 2015, a federal judge issued a preliminary injunction temporarily blocking the implementation of the expanded DACA and DAPA initiatives.

39.  Program for unauthorized parents of a U.S. citizen or lawful permanent resident child born on or before 11/20/14, who pass a background check.  To qualify, individuals must have lived in the U.S. continuously since January 1, 2010.  They must demonstrate they were in the U.S. on November 20, 2014, and on the date they apply.  Deferred action will be granted for 3 years with EAD.  About 4 million people are estimated to be eligible.  The program should be ready in Spring of 2015. Deferred Action for Parental Accountability (DAPA)

40.  Provides temporary relief from deportation and gives work authorization to young people brought to the U.S. as children.  Will expand program that was first created in 2012.  Applicant must have entered the U.S. before January 1, 2010 and before turning 16 years old.  Must have been continuously present in the U.S. since January 1, 2010, and pass background checks.  Previously, applicants needed to be under the age of 31 on June 15, 2012, but the age ceiling has been eliminated.  Deferred action will be granted for 3 years with EAD. Deferred Action for Childhood Arrivals (DACA)

41.  Neither DAPA nor DACA confers any immigration status.  Only temporary relief from deportations is available.  The programs do not grant green cards or citizenship.  They do not provide a path to green cards or citizenship.  They are not available immediately.  Many undocumented persons will not be eligible.  This could expand the legal workforce by about four million people. Effect of DAPA and DACA

42.  Employers must have a properly completed Form I-9 on file for every employee hired after 11/6/1986.  Your current employees may be presenting new employment authorization documents and perhaps new identities and SSNs.  If you receive updated documentation, you should review the employee’s previously completed I-9 and determine whether to complete a new I-9 or simply complete Section 3 of the previously completed I-9.  If name, DOB, attestation or SSN has changed, you should complete a new I-9 and go through E-Verify. Employer Compliance with Employment Verification Requirements

43.  Extensions of temporary relief for workers already in the U.S. could make their status more confusing to employers.  USCIS will issue further I-9 guidance to employers as the volume of Employment Authorization Documents (EADs) will increase due to the expansion of DACA and the new DAPA program.  An employer could face liability for past hiring of unauthorized workers and also may face discrimination charges for hiring newly documented workers who previously presented fraudulent documents. What Does it Mean for You?

44.  Employers must wait for additional guidance before they can even consider hiring anyone who may fall within the scope of the Executive Order.  It is still unlawful to knowingly hire undocumented workers and doing so will still result in significant civil and/or criminal penalties.  Will the Executive Order set the stage for a permanent legislative solution in 2015?  H-1B visa lottery right around the corner! What’s on the Horizon?

45. For More Information: If you would like more information about the services of Pro Bono Partnership of Atlanta, contact us at: www.pbpatl.org 404-407-5088 info@pbpatl.org