the ice storm

I-9 Compliance and Worksite Enforcement

Melissa M. Chase, Esq.

The Immigration Reform and The Immigration Reform and Control Act (“IRCA”)Control Act (“IRCA”)

• Took effect on November 6, 1986Took effect on November 6, 1986

• RequiresRequires an I-9 to verify an I-9 to verify employment authorization of all employment authorization of all employeesemployees

• OutlawsOutlaws hiring or continuing to hiring or continuing to employ an alien employ an alien knowingknowing the alien the alien is unauthorized to work in the U.S. is unauthorized to work in the U.S.

What is What is ““KnowingKnowing””??

•ActualActual knowledgeknowledge

•Constructive Constructive knowledgeknowledge

–Reasonable person standardReasonable person standard

–Totality of the circumstancesTotality of the circumstances

ConstructiveConstructive Knowledge Knowledge is imputed if the employer:

• Fails to complete or improperly completes Form I-9

• Has information indicating that alien is unauthorized to work– Written notice from the Department of Homeland

Security– Other notice – highly suspicious documents, media

reports, etc.

• Acts with reckless and wanton disregard

• Deliberately fails to investigate Deliberately fails to investigate suspicioussuspicious circumstancescircumstances

Example of a ‘suspicious’ documentExample of a ‘suspicious’ document

What’s Wrong With This Picture?What’s Wrong With This Picture?

I-9 I-9 COMPLIANCECOMPLIANCE

Who must complete a Form I-9? Who must complete a Form I-9?

Rule: Rule: ALL employers must complete a ALL employers must complete a Form I-9 for ALL employees - regardless Form I-9 for ALL employees - regardless of the size of their business!of the size of their business!

Exceptions: Exceptions: • Pre-November 6, 1986 hires Pre-November 6, 1986 hires • Casual domestic work in a private home Casual domestic work in a private home

on a sporadic, irregular, or intermittent on a sporadic, irregular, or intermittent basisbasis

• Independent contractors and their Independent contractors and their employeesemployees

Independent Contractors Independent Contractors

and Sub-Contractorsand Sub-Contractors

Employer can be held liable for employing Employer can be held liable for employing contractors and sub-contractors if the contractors and sub-contractors if the employer has employer has knowledgeknowledge of unauthorized of unauthorized workersworkers

When must the Form I-9 be completed? When must the Form I-9 be completed?

• Within Within 3 business days3 business days of hire or re-hire of hire or re-hire

• Re-verifyingRe-verifying upon expiration of work upon expiration of work authorization authorization –On Section 3 of the old I-9 or, if already used, on a On Section 3 of the old I-9 or, if already used, on a

new I-9new I-9

–Beware: disqualifying an alien because of a future Beware: disqualifying an alien because of a future expiration date may be illegal discriminationexpiration date may be illegal discrimination

• No requirement to re-verify after a No requirement to re-verify after a merger/acquisition but it is highly recommended merger/acquisition but it is highly recommended

How must the Form I-9 be How must the Form I-9 be completed? completed?

• Examining Examining originaloriginal documents documents to verify to verify both:both:– identity and identity and –work eligibilitywork eligibility

• Treating all employees the sameTreating all employees the same

• Not committing document abuseNot committing document abuse

What about Electronic I-9 What about Electronic I-9 Compliance?Compliance?

• Regulation effective sinceRegulation effective since 2006 2006

• Employers may Employers may complete, sign and complete, sign and storestore I-9’s electronically I-9’s electronically– Paperless officePaperless office– Cost efficient Cost efficient

I-9 – The Three R’s I-9 – The Three R’s

• Review Review original documentsoriginal documents

• Re-verify Re-verify only if employee’s authorization only if employee’s authorization to work expires to work expires

• Retain Retain I-9 for 3 years after date of hire or I-9 for 3 years after date of hire or 1 year after date of termination, 1 year after date of termination, whichever is laterwhichever is later

Front of “Green Card”

Back of “Green Card”Is upside down

Current Version of the Permanent Resident Card

Older Versions of “Green Card”Older Versions of “Green Card”

Employment Authorization Employment Authorization DocumentDocument

Restricted Social Security Card

I-9 Public Inspection FoldersI-9 Public Inspection Folders

• Required: Required: Retain the I-9 and make it Retain the I-9 and make it available for inspectionavailable for inspection

• Recommended:Recommended: Separate folder for I-9s, Separate folder for I-9s, rather than including them in the rather than including them in the individual’s personnel file individual’s personnel file

• NOT Required: NOT Required: Retain copies of the Retain copies of the employee’s I-9 verification documents (but employee’s I-9 verification documents (but ifif copies copies areare retained, the employer must do retained, the employer must do so forso for allall employees) employees)

““No Match”No Match” Letters Letters

• What are they?What are they?– Notice from the Social Security Administration Notice from the Social Security Administration

(SSA) of discrepancy between wage reporting and (SSA) of discrepancy between wage reporting and SSA informationSSA information

• What are they NOT?What are they NOT?– A notice that an employee is not authorized to workA notice that an employee is not authorized to work– A statement about an employee’s immigration A statement about an employee’s immigration

statusstatus– An implication that you or your employee An implication that you or your employee

intentionally provided incorrect informationintentionally provided incorrect information

““Reasonable Steps”Reasonable Steps”

The new regulation which was to take effect The new regulation which was to take effect September 2007 is entitledSeptember 2007 is entitled “Safe-Harbor “Safe-Harbor Procedures for Employers Who Receive a "Procedures for Employers Who Receive a "No-No-MatchMatch" Letter”" Letter”

The underlying idea of the regulation is that an The underlying idea of the regulation is that an employer who takes “employer who takes “reasonable stepsreasonable steps” is under ” is under a “a “safe harborsafe harbor” from potential liability” from potential liability

Timeline for Timeline for “Reasonable Steps”“Reasonable Steps”• Day 0Day 0

– Employer receives letter from SSA or DHS Employer receives letter from SSA or DHS indicating mismatch of employee’s name & SSNindicating mismatch of employee’s name & SSN

• 0-30 Days0-30 Days– Employer checks own records, makes any Employer checks own records, makes any

necessary corrections and verifies corrections necessary corrections and verifies corrections with SSA or DHSwith SSA or DHS

• 0-90 Days0-90 Days– If necessary, employer notifies employee & asks If necessary, employer notifies employee & asks

employee to assist with correctionemployee to assist with correction– If necessary, employer then corrects its own If necessary, employer then corrects its own

records & verifies correction with SSA or DHSrecords & verifies correction with SSA or DHS• 90-93 Days90-93 Days

– If necessary, employer performs special I-9 If necessary, employer performs special I-9 procedureprocedure

Audits & InspectionsAudits & Inspections

Every year Immigration Every year Immigration and Customs and Customs Enforcement (Enforcement (ICEICE) ) conducts well over conducts well over 60,000 inspections of I-60,000 inspections of I-9s 9s

ICEICE usually audits an usually audits an employer’s I-9s either employer’s I-9s either because it isbecause it is focusing on focusing on a particular industrya particular industry, , or or because it has receivedbecause it has received information that information that unauthorized workers unauthorized workers are employedare employed

Important Note regarding Important Note regarding

Audits/Inspections and Worksite Audits/Inspections and Worksite RaidsRaids

• For an For an I-9 AuditI-9 Audit, ICE, ICE – Is Is NOTNOT required to have a search warrant required to have a search warrant– IS IS required to give 3 days advance notice (even if required to give 3 days advance notice (even if

a subpoena has been issued)a subpoena has been issued)

• For a For a Worksite RaidWorksite Raid, ICE, ICE– ISIS required to have a search warrant required to have a search warrant– Is Is NOT NOT required to give any advance noticerequired to give any advance notice

““The ICE Man Cometh”The ICE Man Cometh”

Civil Penalties Civil Penalties

• From From $110 to $1,100 for $110 to $1,100 for eacheach failure to properly failure to properly complete and maintain a Form I-9 for each complete and maintain a Form I-9 for each employeeemployee

• From From $375 to $6,500 for $375 to $6,500 for eacheach piece piece of document of document fraud fraud

• From From $375 to $16,000 for $375 to $16,000 for eacheach unauthorized unauthorized worker the employer worker the employer knowinglyknowingly hired or hired or continued to employcontinued to employ

• Seizure and ForfeitureSeizure and Forfeiture of assets of assets

• Employees may file a civil class action suitEmployees may file a civil class action suit under the Racketeer Influenced and Corrupt under the Racketeer Influenced and Corrupt Organizations Act (RICO)Organizations Act (RICO)

Criminal PenaltiesCriminal Penalties

• Repeat I-9 offendersRepeat I-9 offenders– $3,000 fine$3,000 fine for each violation and for each violation and – 6 months6 months in prison in prison

• Harboring, Identity Theft, Fraud, Trafficking, Harboring, Identity Theft, Fraud, Trafficking, Money Laundering Money Laundering

• ConspiracyConspiracy– Up toUp to $250,000 fine $250,000 fine for each unauthorized for each unauthorized

worker andworker and– Up to Up to 5 years5 years in prison (or in prison (or 20 yrs20 yrs for for

money laundering conspiracy)money laundering conspiracy)

• Document FraudDocument Fraud– Up toUp to $250,000 fine $250,000 fine andand– 5 to 10 years 5 to 10 years in prisonin prison

ICE Worksite ArrestsICE Worksite Arrests

FY2002FY2002 FY2008FY2008

Criminal ArrestsCriminal Arrests 25 25 1103 1103

Employers, corporate officers, Employers, corporate officers, managers, contractors, facilitators, managers, contractors, facilitators, aliensaliens

Administrative ArrestsAdministrative Arrests 485 485 5184 5184

Aliens unlawfully present in U.SAliens unlawfully present in U.S..

The Profile of aThe Profile of a “Targeted Company” “Targeted Company”

• Executives are the leastExecutives are the least ‘in the know’ ‘in the know’• I-9s may be perfect in detail but lackI-9s may be perfect in detail but lack

substancesubstance• Afraid Afraid to question authenticity of documentsto question authenticity of documents• Assumes Assumes long years of residence in U.S. long years of residence in U.S.

equates into some sort of legal status (not equates into some sort of legal status (not so!)so!)

• Receives no match letters andReceives no match letters and ignores ignores themthem• Doesn’t check Doesn’t check social security numbers social security numbers

through any of the available sourcesthrough any of the available sources

What can What can your companyyour company do to do to insulate itself from an ICE storm? insulate itself from an ICE storm?

Contact a qualified corporate Contact a qualified corporate immigration attorney to perform an immigration attorney to perform an internal auditinternal audit

Have Have proper trainingproper training for HR personnel for HR personnel Maintain Maintain meticulous recordsmeticulous records Never assumeNever assume anything anything

Slides and Information Prepared by: Slides and Information Prepared by:

Melissa M. ChaseMelissa M. ChaseAttorney at LawAttorney at Law

www.melissachase.netwww.melissachase.net