Immigration Enforcement

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<ul><li> 1. The Orangeburg County Chamber of Commerce Presents IMMIGRATION ENFORCEMENT: NEW DEVELOPMENTS October 23, 2008 David Dubberly Certified Specialist in Employment and Labor Law Melissa Azallion Immigration Attorney </li> <li> 2. Agenda Overview of Worksite Enforcement Employment Eligibility Verification I-9 Compliance Enforcement and Penalties ICE Audits and Raids SSA No Match Letters E-Verify System SC Illegal Immigration Reform Act </li> <li> 3. Overview of Worksite Enforcement </li> <li> 4. Immigration Reform and Control Act of 1986 Unlawful for employers to knowingly hire or continue to employ unauthorized workers ALL employers must complete and retain I-9 form for new employees and comply with retention rules Non-compliance punishable by civil and criminal penalties Also prohibits national origin or citizenship status discrimination </li> <li> 5. Since IRCA Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) authorized electronic employment verification systems E-Verify (formerly Basic Pilot) Increased employer sanctions DHS Proposed Rule on SSA No Match Letters Employer audits by ICE Increased worksite enforcement actions </li> <li> 6. New Form I-9 Revised form as of December 26, 2007 SSN voluntary, but not required Unless employer participating in E- Verify More prominent anti- discrimination statement Revised M-274 Handbook for Employers </li> <li> 7. I-9 General Rules New employee must provide documents reflecting: Employee is eligible to work Identity must match work eligibility documents Complete I-9 form for every new employee within 3 days of hire Retain for 3 years after hire or 1 year after termination, whichever is later </li> <li> 8. Anatomy of Form I-9 Establishes (1) employment eligibility; and (2) identity List A: Documents that establish both Examples: U.S. passport, Permanent Resident Card, Unexpired foreign passport with temporary I-551 stamp, Unexpired foreign passport with unexpired Form I-94 containing nonimmigrant status authorizing work OR List B: Document that establishes identity; AND Examples: Drivers license, government agency issued ID card Must include photograph if employer enrolled in E-Verify List C: Document that establishes employment eligibility Examples: Unrestricted Social security card, unexpired employment authorization documents </li> <li> 9. Non-discrimination Requirement Employers CANNOT: Request more or different documents Specify which documents they will accept Refuse to honor documents that reasonably appear genuine on their face Refuse to accept a document or hire an individual because a document has a future expiration date Employers MUST treat all employees the same when completing I-9s </li> <li> 10. IRCA: Knowledge Actual knowledge Constructive knowledge May be inferred through notice of certain facts and circumstances which would lead a person, through exercise of reasonable care, to know about a certain condition Reasonable steps taken by employer Totality of the circumstances approach </li> <li> 11. Constructive Knowledge Accepting incomplete or improperly competed I-9s Failing to investigate suspicious circumstances Fake documents Hiring employee who previously used different name Hiring workers who cant speak English but check U.S. citizen or Lawful Permanent Resident on I-9 New regulations: Failure to investigate employees request for employers sponsorship for labor certification or visa petition Failure to address written notice from DHS or SSA </li> <li> 12. Interior Immigration Enforcement: ICE at Your Business ICE has authority to conduct I-9 audits Must have warrant or employers permission to enter private workplace Notice of Inspection Must give employers 3 days notice unless ICE has search warrant ICE doesnt need warrant to inspect or conduct I-9 audit if notice given Receptionist key contact </li> <li> 13. Investigative Techniques ICE coordinates with IRS, DOL, and other agencies Audit v. raid Has authority to use wiretaps Has authority to establish and operate undercover investigations Uses confidential informants ICE investigations take place in form of: Lead-driven investigations Random audits </li> <li> 14. Investigations and Audits Lead-driven worksite Random sudits investigations ICE can randomly select Anonymous tip along with review of employers to audit through I-9 Forms often triggers lead- General Inspection Program driven worksite investigation Also randomly selects To initiate investigation, ICE needs employers to audit within a lead and articulable facts that industries known to use would give ICE reasonable undocumented workers through suspicion that employer is not Special Emphasis Inspections compliant Program </li> <li> 15. ICE: Worksite Enforcement Increased enforcementthrough August, 1022 criminal arrests, including 116 of owners, managers, and supervisors Industries targeted included: Restaurants Janitorial contract services Hospitality Employment agencies Farms (produce, Textile producers dairy) Construction Poultry/meat processing Steel </li> <li> 16. ICE: Worksite Enforcement If youre blatantly violating our worksite enforcement laws, well go after your Mercedes and your mansion and your millions. Well go after everything we can, and well charge you criminally. Julie Myers, Assistant Secretary for Homeland Security, U.S. Immigration and Customs Enforcement, quoted in Washington Post article, Immigration Enforcements Shift in the Workplace, on April 16, 2006 </li> <li> 17. Penalties for I-9 Non-Compliance I-9 paperwork violations when worker is in fact authorized $110-$1100 per employee Good faith exception for paperwork violations Knowingly employing unauthorized workers Civil penalties for offenses occurring on/after 3/27/08 1st offense: $375-$3,200 for each violation 2nd offense: $3,200-$6,500 for each violation Thereafter: $4,300-$16,000 for each violation Criminal penalties for pattern or practice $3,000 per unauthorized alien and/or 6 months imprisonment </li> <li> 18. Criminal Focus Major emphasis on criminal activity: Unlawful employment (misdemeanor) Identity theft/aiding and abetting ID theft Fraud and misuse of immigration documents Money laundering Harboring illegal aliens ICE has moved way past misdemeanor In past ICE stressed misdemeanor offense for hiring unauthorized aliens Said little or nothing about felony harboring and related offenses ICE charging felony harboring with much greater frequency </li> <li> 19. What is Harboring? With the intent to help alien avoid detection and knowingly/recklessly disregarding illegal status: Hiring and continuing to employ a person Renting housing to, acquiring housing for, or otherwise providing housing for person Paying a contractor while knowing/recklessly disregarding illegal status or fact it is employing illegal alien Employment plus can also incur felony harboring charges: Housing or transporting workers with actual or constructive knowledge of illegal status Warning workers of ICE raid activity Counseling workers to use fake documents Paying illegal workers off the books Transferring illegal workers between job sites to avoid detection Assisting illegal workers to complete Form I-9 with fake documents </li> <li> 20. Defense Against Enforcement Efforts: I-9 Compliance Tools Implement immigration compliance program Understand I-9 process Provide training for supervisors/managers Annual I-9 self audit Efficient records management Correct problem areas Consider E-Verify </li> <li> 21. SSA No Match Letters What they are: Notice from SSA to employee or employer that combination of name and/or SSN submitted on W-2 earnings reports doesnt match SSA records To inform workers they arent getting credit for their earnings, which can affect their SSA benefits What they arent: Notice to employer that employee is unauthorized to work Statement about employees immigration status or indication that person is undocumented Employee should be terminated </li> <li> 22. DHS Rule and Constructive Knowledge DHS No Match Rule amends and expands definition of constructive knowledge to include: Employers failure to take action upon receipt of SSA No Match letter or written notification from DHS Also provides safe harbor against constructive knowledge finding if employer attempts to resolve discrepancy and, if necessary, re- verifies work authorization within 93 days of receipt of letter </li> <li> 23. No Match Letter Practical Issues Do not ignore letter Establish policies to address and resolve discrepancies in uniform manner (typo?) Terminate employee if additional knowledge (e.g., admission by employee) indicates employee not eligible to work in U.S. Do not use letter by itself for taking adverse employment action </li> <li> 24. Practical Issues Contd Follow up may reveal actual or constructive knowledge of unauthorized employment If new I-9 cant be completed within 93 days because employee cant produce acceptable documentation (without the questionable SSN), employer must decide whether to: Terminate employee; or Risk being determined to have constructive knowledge in any subsequent DHS enforcement action </li> <li> 25. E-Verify Background Formerly known as Basic Pilot Program Partnership between DHS and SSA administered by USCIS Web-based employment verification program allows employers to electronically verify employment eligibility of employees for new hires Prohibited from using to screen applications or reverify existing employees Free of charge to employers in all 50 states Set to expire November 2008 but expected to be renewed </li> <li> 26. Federal Contractors President Bush issued Executive Order on June 9, 2008 requiring use of E-Verify as condition of each future federal government contract Upon publication of Final Rule, executive departments and agencies entering into contracts must require contractors agreement to use E-Verify for: All persons hired by the contractor All persons assigned by contractor to perform work within U.S. on the contract </li> <li> 27. Federal Contractors Contd Contractor means any individual or other legal entity that (1) Directly or indirectly (e.g.,through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract; or (2) Conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor. </li> <li> 28. E-Verify Registration Go to Select the Sign Up link and follow instructions Must electrically sign Memorandum of Understanding (MOU) with DHS and SSA Read user manual and complete web-based tutorial Designated employees authorized to use system must also complete online training </li> <li> 29. How the Program Works Complete I-9 form for new employee within first 3 days of employment After I-9 completed, E-Verify user must enter information directly from I-9 form </li> <li> 30. How The Program Works Contd System queries SSA and DHS databases to verify identity and employment eligibility SSA first verifies name, SSN, and date of birth SSA also confirms citizenship if worker stated he/she is a U.S. citizen USCIS verifies noncitizens employment eligibility Initial verification returns 1 of 3 results: Employment authorized; SSA Tentative Non-Confirmation; or DHS verification in process </li>...</ul>


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