1. Stay Out of Jail: Immigration Compliance Issues for Employers Glen M. Krebs Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY 40507 859/288-7409 or gkrebs@wyattfirm.com

2. Stay Out of Jail I-9 Compliance

3. Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters)

4. Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters) E-Verify

5. Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters) E-Verify Undocumented or improperly documented workers – Employer Sanctions

6. Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters) E-Verify Undocumented or improperly documented workers – Employer Sanctions ICE Raids

7. I-9 Compliance Section 1 completed at time of hire

8. I-9 Compliance Section 1 completed at time of hire Verification docs provided w/in 3 days

9. I-9 Compliance Section 1 completed at time of hire Verification docs provided w/in 3 days Evidence of current work authorization placed in reverification tickler system

10. I-9 Compliance Section 1 completed by employee at time of hire Verification docs provided w/in 3 days Evidence of current work authorization placed in reverification tickler system Section 2 completed by employer w/in 3 days of hire

11. I-9 Compliance Do not require specific documents or more than the law requires

12. I-9 Compliance Do not require specific documents or more than the law requires Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination

13. I-9 Compliance Do not require specific documents or more than the law requires Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination Use an adequate tickler system to reverify expiring work authorizations

14. Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986

15. Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986 Separate out I-9 forms which no longer need to be maintained

16. Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986 Separate out I-9 forms which no longer need to be maintained Assure that each employee has a form I-9

17. Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986 Separate out I-9 forms which no longer need to be maintained Assure that each employee has a form I-9 Review I-9 for completeness and technical mistakes and make proper corrections

18. Internal I-9 Audit If necessary, request appropriate documentation or reverify employability

19. Internal I-9 Audit If necessary, request appropriate documentation or reverify employability Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time

20. Internal I-9 Audit If necessary, request appropriate documentation or reverify employability Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time Prepare a file memo detailing results of audit and recommendations

21. Origin of No-Match In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match

22. Origin of No-Match In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match Employer has no “affirmative duty” to re- verify Employee’s work authorization

23. Origin of No-Match In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match Employer has no “affirmative duty” to re- verify Employee’s work authorization Knowingly employing undocumented workers vs. discrimination based on race or citizenship

24. DHS New Regulation August 15, 2007 Upon receipt of no-match letter, Employer must check its records and correct if necessary

25. DHS New Regulation Upon receipt of no-match letter, Employer must check its records and correct if necessary Or, Employer must request the Employee to confirm the name and SSN –if incorrect Employer must make changes

26. DHS New Regulation Upon receipt of no-match letter, Employer must check its records and correct if necessary Or, Employer must request the Employee to confirm the name and SSN –if incorrect Employer must make changes –if correct, Employer must advise Employee to resolve discrepancy within 90 days of receipt of no-match letter

27. DHS New Regulation If Employee cannot resolve the discrepancy within 90 days the Employer must –Re-verify the I-9 form within 93 days of receipt of no-match letter

28. DHS New Regulation If Employee cannot resolve the discrepancy within 90 days the Employer must –Re-verify the I-9 form within 93 days of receipt of no-match letter –Employer may not accept any document which contains the old SSN

29. DHS New Regulation If Employee cannot resolve the discrepancy within 90 days the Employer must –Re-verify the I-9 form within 93 days of receipt of no-match letter –Employer may not accept any document which contains the old SSN –Employee’s identity must be confirmed by document containing a photo

30. DHS New Regulation Compliance with these procedures will provide a “Safe Harbor” for Employers – they will NOT be deemed to have constructive knowledge that their Employees are undocumented

31. California District Court Enjoins Implementation – Oct. 10, 2007 The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation.

32. California District Court Enjoins Implementation – Oct. 10, 2007 The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation SSA decided not to issue any no-match letters until litigation is resolved

33. DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that

34. DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized

35. DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized –There are both innocent and non-innocent reasons for no-match letters, but

36. DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized –There are both innocent and non-innocent reasons for no-match letters, but –An Employer may not safely ignore SSA no- match letters, and

37. DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no- match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized –There are both innocent and non-innocent reasons for no- match letters, but –An Employer may not safely ignore SSA no-match letters, and –An Employer must be aware of and comply with the anti- discrimination provisions of INA

38. WHAT NEXT ?? Nobody knows

39. WHAT NEXT ?? Nobody knows Prudent course of action is to implement actions described in the New Regulation

40. WHAT NEXT ?? Nobody knows Prudent course of action is to implement actions described in the New Regulation But that is not necessary until the District Court’s injunction is lifted

41. E-Verify Best means available for employers to verify electronically the employment eligibility of their newly hired employees

42. E-Verify Best means available for employers to verify electronically the employment eligibility of their newly hired employees Does not verify immigration status

43. E-Verify Best means available for employers to verify electronically the employment eligibility of their newly hired employees Does not verify immigration status Does not protect against workplace enforcement, but does presume that employer did not knowingly hire unauthorized alien

44. E-Verify You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors

45. E-Verify You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors For more information: –www.dhs.gov/e-verifywww.dhs.gov/e-verify –888-464-4218

46. Enforcement DHS – Secure Border Initiative (SBI)

47. Enforcement DHS – Secure Border Initiative (SBI) Civil Penalties

48. Enforcement DHS – Secure Border Initiative (SBI) Civil Penalties Criminal Penalties

49. Enforcement DHS – Secure Border Initiative (SBI) Civil Penalties Criminal Penalties

50. Secure Border Initiative First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov. 2005 with increased emphasis on audits and administrative enforcement (Walmart case)

51. Secure Border Initiative First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov. 2005 with increased emphasis on audits and administrative enforcement (Walmart case) Second Phase – April 2006. Simultaneously identify and remove criminals, immigration fugitives, and other immigration violators, “build strong worksite enforcement compliance programs”

52. Secure Border Initiative First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov. 2005 with increased emphasis on audits and administrative enforcement (Walmart case) Second Phase – April 2006. Simultaneously identify and remove criminals, immigration fugitives, and other immigration violators, “build strong worksite enforcement compliance programs” JUMBO BUFFET CASE

53. Secure Border Initiative Fiscal Year 2007 Results –ICE removed 276,912 illegal immigrants –Fugitive Op Teams up to 75 (18 in 2005) –Secured $30 million in fines from employers while making 863 criminal arrests and 4,077 administrative arrests –ICE ACCESS program launched to train local law enforcement to conduct immigration enforcement duties

54. Civil Penalties Hiring or Continuing to Employ Unauthorized Aliens –1 st Offense:$275 - $2,200 –2 nd Offense: $2,200 - $5,500 –3 rd Offense: $3,300 - $11,000

55. Civil Penalties Hiring or Continuing to Employ Unauthorized Aliens –1 st Offense:$275 - $2,200 –2 nd Offense: $2,200 - $5,500 –3 rd Offense: $3,300 - $11,000 Failure to Properly Comply with I-9 Requirements –$110 - $1,100 per employee

56. Civil Penalties Unlawful Discrimination –1 st Offense:$250 - $2,000 –2 nd Offense: $2,000 - $5,000 –3 rd Offense: $3,000 - $10,000

57. Criminal Penalties Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens –May be fined up to $3,000 per employee or sentenced for up to 6 months imprisonment

58. Criminal Penalties Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens –May be fined up to $3,000 per employee or sentenced for up to 6 months imprisonment Engaging in Fraud or False Statements –May be fined up to $10,000 and imprisoned for up to 5 years

59. Criminal Penalties INA 274 – Bringing in and Harboring –Up to $250,000 fine –Bringing in Up to 10 yrs in Prison –Transporting the employee to evade the law Up to 5 yrs in Prison (10 yrs if for financial gain) –Harboring, Concealing, Shielding, etc. Up to 5 yrs in Prison (10 years if for financial gain)

60. Criminal Penalties Encourages or induces to come in –Up to 5 yrs in Prison (10 yrs if for financial gain) Conspiracy (10 yrs.) or Aiding and Abetting (up to 5 yrs. in prison) the above

61. Criminal Penalties INA 277 – Aiding or Abetting the Bringing in of Known Illegal Aliens –Up to 10 yrs in Prison

62. Criminal Penalties Violations of INA Sections 274 and 277 (among others) constitute predicate offenses and may serve as the basis for prosecution under RICO. This includes criminal penalties and civil penalties including use by legal employees who were affected by violations of the INA or by competitors who lost out on contracts due to immigration violations.

63. Glen M. Krebs Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY 40407 (859)288-7409 gkrebs@wyattfirm.com