www.williamsmullen.com 1 webinar june 11, 2009 1 pm. edt. the “nuts and bolts” of e-verify are...

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WEBINAR June 11, 2009 1 pm. EDT. The “Nuts and Bolts” of E-Verify

Are You Ready?

Brian Taylor, LawLogix (Guardian Systems)[email protected] 602.295.6211

Linda LeeHR Manager

Eliot Norman, Team LeaderWorksite Enforcement and Corporate Immigration Compliance Team Williams Mullen [email protected] updates:http://tinyurl.com/immupdateswww.williamsmullen.com/immigration


President Obama on Worksite Enforcement

Typical Press Conference on April 29th

“What has Surprised, Troubled, Enchanted, and Humbled you?

Then got asked the Immigration Question.

His answer in part: “We can't continue with a broken immigration

system. It's not good for anybody. It's not good for American workers. [We need to be] “taking seriously the violation of companies. That’s again something we can start doing administratively.”


New Assistant Secretary at DHS From the Senate Confirmation Hearings: John Morton,

New Director of ICE and former federal prosecutor on April 23rd:

Q. “What is your view of the worksite enforcement operations conducted by ICE?”

A. “ WE NEED TO PLACE RENEWED FOCUS ON EMPLOYERS TO ENSURE THAT THEY ARE PLAYING BY THE RULES…THIS FOCUS SHOLD INCLUDE MORE ROUTINE USE OF CIVIL SANCTIONS…AND WE SHOULD CONTINUE TO DEVELOP PROGRAMS SUCH AS E-VERIFY TO ENCOURAGE COMPLIANCE.”

Mentioned good old days of $25 million annually in civil fines. Time to bring em back.


MINI-WEBINAR #1: The Nuts and Bolts of Filling in the NEW I-9 Form (effective April 3, 2009)

Link to audio and slides for your HR Managers or others who Missed It. http://www.williamsmullen.com/filling-in-the-new-i-9-03-23-2009/


Simple Case?

Gopalan Balasubramanian

Indian Software Engineer that works on your Legacy IT Systems responsible for trillions of bits of data

Has a valid H-1b, walks in to do his I-9 on first day of work


“VALID FOR WORK ONLY WITH DHS AUTHORIZATION”

UNEXPIRED DRIVER’S LICENSE


Section 1: Not Completebut employee is saying:I only have temporary workpermit by checking boxX=“An alien authorized towork until”

Section 2HR Uses Drivers Lic & SS Card

I-9 “Done Wrong”

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxx

xxxxxxxxx

$375 Fine+


xxxxxxxxxxxxxxxxxxxxxxxxx

Section 2: HR recognizestemporarily employed; Fills In List A with double combination of ForeignPassport and I-94 Card

Section1: Employee completes data with # and Date. Determines how Section 2to be completed by HR.

I-9 Done “Right”

TO DO: COME UP WITH SPREADSHEET REMINDERTO RE-VERIFY Section 3July 15, 2010 Still have CONTINUING LIABILITY RISK


Employee Completes Section 1: BUT EMPLOYER PAYS THE FINES


WEBINAR # 2: May 4, 2009 The “Nuts and Bolts” of Electronic I-9s

Eliot Norman, Team LeaderWorksite Enforcement and Corporate Immigration Compliance Team Williams Mullen [email protected]

http://tinyurl.com/electronicI-9s www.williamsmullen.com/immigration


Desired Features: I-9 Electronic System

Easy on-web access by new hires when offer is accepted

Electronic signatures

Must do more than just substitute an electronic form for a paper one;

Must have controls so that Employee cannot sign Section 1 if done wrong; this means HR cannot fill in Section 2 until Section 1 properly completed by employee;

HR cannot sign off on Section 2 if data incorrect

Wish list: HR can review electronically I-9 forms for trends, problems in real time

Some sort of “monitoring” or real-time “dashboard” feature.

Need for Date Tracking Systems; Controls; Reports

Scanning of existing records should meet federal standards, integrate into new I-9 System?

Costs v. Benefits?


Managing Risks Checklist forI-9 Nuts and Bolts

1. Sample, Scorecard, Train, Certify, Self-Audit: and then go back 6 months later and do it again. See PDF Exhibits.

2. When Box 4 (temporary employment eligibility) is checked in the new Section 1, “Stop, Look, and Listen”

3. Get the List of Available documents out as early as possible in the application process: New and old U.S. Citizens in particular are going to have problems with the new I-9;

4. Go to Electronic I-9s: internal check against filling in Section 1 incompletely and proceeding to Section 2; and making sure Section 2 squares with info on Section 1.

5. Scan existing I-9s and Documents presented and shred the paper ones.

6. Purge your I-9 Data using the 3yr/1yr Rule.


Reducing Liability and Risks: I-9 Compliance: “Best Practices”

7. M&A Situations: Successor Company can rely on I-9 Forms it inherits from the acquired firm: does not have to re-verify identity/work authorization of employees. What about E-Verify registrations?

Liability, however, also carries over for any violations. Consider using immigration counsel to evaluate liability as part of due diligence

Query whether this is the time to integrate I-9s into your system, clear up issues, errors, make corrections, eliminate “skeletons” in the closet

Use same approach with H-1Bs or pending Green Card applications held by employees of acquired company: must be promptly transferred to acquiring company or Newco. If you “assume immigration liabilities” in the deal documents, you can avoid $2300 in government filing fees per H-1B worker

8. SINGLE BEST PRACTICE (other than Score Cards and Training the Trainers): Move to I-9 Electronic System, then scan in and shred the paper. Avoids training and re-training. Reduces error rate dramatically.


Part 3: Moving from I-9 to E-Verify

For the Employer: One of the motivating factors to consider Going with Electronic I-9s to begin with.

For the Government: huge incentive: Lets take the data in Section 1 of the I-9 and compare it with the 60 million DHS and 425 million SSA records to electronically verify identify and work authorization of new hires.

Initially a voluntary or pilot program;

Initially applied only to new hires at one or more employer sites that registered for E-Verify

Mixed results pre-2007 or 2008 in terms of accuracy and effectiveness

HAS GENERATED OPPOSITION: Where is it coming from? “Don’t Ask, Don’t Tell” Businesses: real meaning of “undocumented” aliens

(e.g. Naturalized citizens not being picked up in the process)

Estimated 4-6 million U.S. citizens would test as “false positive” =not authorized to

work


E-Verify Results by June 2009

Voluntary with 127,000+ employers signed up

6.8 million queries, maybe 1/10 new hires in 2008 went through E-Verify?

99% accuracy? Nationally, about 96%+ accurate enough to provide instant verification of identity and work authorization. 3.5% TNC become FNC without change. .5% are “false” hits and need correction.

Cannot prevent identity theft or eliminate I-9 process

Expansion to Federal Government and Federal Contracts?

Meanwhile States: 17 now have E-Verify Statutes or Executive Orders mandating its use: vary widely. See Chart, Ex. 5 in the PDF.

I-9s: still there whether you do E-Verify or Not

What’s an employer to do?


14 E-Verify States in Red as of April 2009, subtract Ilinois, by June 2009: Add 3 more: Arkansas, Nebraska, Utah


“Nuts and Bolts” E-Verify

Register at http://wwww.vis-dhs.com/EmployerRegistration

Sign a MOU between your company and DHS/SSA

Take a Tutorial and score at least 70%

Must verify all new employees

After Section 1 and 2 of the I-9 completed, employer representative logs on and submits Section 1 Data which is checked against data bases in DHS and SSA. Must photocopy EADs and Green Cards.

Same 3 business day rule to submit E-Verification query as for I-9 certifications However, can submit E-Verify query before employee starts paid employment and after

accepts offer of employment.

Practical implications when compare to timing of I-9 Form completion


“Nuts and Bolts”

Who is going to do the E-Verify?

How do we handle multiple hiring sites?

One MOU or multiple MOUs?

Amend to include additional hiring sites?

E-Verify Corporate Administrator?

Differences with I-9

Controlled Roll-out

Centralize Tentative Nonconfirmations (TNC)?

Complications of Photo Screen Tool


“Nuts and Bolts”

RESULTS:

Instant verification

Tentative Nonconfirmation (TNC) or

DHS needs more time (“Case in Continuance”

SSNs: what if employee doesn’t have one?


THE TNC Tentative Nonconfirmation (TNC)

SSA TNC

DHS TNC

Employer: must notify employee “as soon as possible” of a TNC

“Employer will determine whether the employee contests the TNC as soon as possible after the Employer receives it.”

Best Practice to comply with ASAP rule?

Employee: 8 federal government work days to contact SSA or DHS

What to do while employee is contesting?

Employee has right to continue working

Employer must check E-Verify system regularly for updates

Document and clip to I-9


The Photo Screening Tool

Applies only to EADs and Green Cards

Does not apply if you are using an E-Verify Designated Agent

Practice Tips: must be exact match, hit Yes, E-Verify will return “employment authorized” response.

Hit NO, you will get a TNC

Can’t tell: explain why and mail it in or send in an electronic copy and let DHS decide.

Problems and Issues

Don’t need to compare with original Green Card/EAD?

Potential Liability

Exact Match Standard


The Final Nonconfirmation (FNC)

Must notify DHS if employer continues to employ a worker for whom employer receives an FNC

Failure to so notify DHS: Fines of $550 to $1100 per worker

Practical Problem Area for the 1% of false positives or false FNCs, , particularly naturalized U.S. citizens

DHS recognition of the issue

New I-9 Rules

May or may not solve the quandry: do we get fined or do we get sued for termination of lawful U.S. worker?


E-Verify Real-World Experience

Viewpoint of the busy Human Resources Manager


MOU

Major Benefits and “Safe Harbor”

Current Areas of Controversy:

Production of Records

Sharing of Data

Proposed Exemption from Privacy Act Rulemaking issued May 22, 2009

Other Issues as they arise


Use of E-Verify Designated Agent

Comments and Demonstration

Brian Taylor


E-Verify and Federal Contracts

How is it supposed to work?

all new hires and all employees “assigned to the contract” : how defined

option: can verify all existing employees

Universities, local governments, Indian Tribes, special rules, apply it only to new employees or existing employees assigned to Federal Contract (FC). Have option of applying it to all new hires, all existing employees.

Security Clearance Employees exempt

Bar on re-verifications



Timetables: Read the MOU , Article II.D.

Not enrolled as Federal Contractor. 30 days to enroll, 90 days to begin using

Enrolled already as FC but less than 90 days, must start using within 90 days

Enrolled already as FC more than 90 days, 3 business days after new hires to use E-Verify

For employees assigned to FC, 90 days after contract award or 30 days after assigned to contract, whichever is later


Which Federal Contracts

All contracts except

valued less than $100,000

work performed outside the U.S.

performance less than 120 days

only for commercially off the shelf COTS items or which would be COTS except for minor modifications

applies only to entity signing the contract, not necessarily parent or subsidiary not performing direct services under the contract

Contracting Officer (CO) responsible for inserting E-VerifyFAR clause. http://tinyurl.com/FAREVERIFY (FAR Regulations)

Your company must insert it if covered subcontract is one for services or construction with value of more than $3,000



Future Issues? http://tinyurl.com/FEDERALEVERIFY (getting old)

Court Litigation and Negotiated Result

Disclosure of data to contracting officer, USCIS, ICE, DOL

Alternatives: National Database of New Hires (NDNH)


E-Verify: “Safe Harbor”

SAFE HARBOR: Participation in E-Verify does not provide automatic or “blanket” protection from worksite enforcement. However, an employer “who verifies work authorization under E-Verify is presumed to have not knowingly hired an unauthorized alien.”

Affirmative Obligation on Employers:

Employer must notify DHS if it continues to employ any worker after receiving a final non-confirmation (FNC) (meaning worker is not who he says he is or does not have work authorization)

Failure to so notify DHS: Employer is subject to $550 to $1100 civil money penalty

Employer is subject to rebuttable presumption that it has knowingly employed an unauthorized alien if it continues to employ a worker for whom it has received a final non-confirmation.

Obligation to notify employee of TNC “as soon as possible”. Best Pratice??


E-Verify: “Nuts and Bolts” Reminders

If employee contests TNC, he has 8 government working days to contact either SSA or DHS or both to clear up the problem

E-Verify now also requires employers to attempt to match scans of photos on Green Cards or Work Cards (EAD) with DHS records; same TNC rules apply;

However, Photo tool requirements currently do not apply if the employer uses an E-Verify Designated Agent

Integrity of I-9 systems drives successful use of E-Verify

Can’t sit back while TNC time-clock is ticking

Tough cases, get help early


E-Verify: “Best Practices”

1. Sooner shift to E-Verify the better. May have to anyways.

2. Should spur elimination of paper I-9 Forms. No sense inviting errors TWICE

3. Purchase or develop in-house Software that integrates the I-9 Data into the E-Verify Data. Makes no sense to fill in the I-9 By Hand; and then retype data from one form (I-9) to the other (E-Verify). Security Clearance Difficulties with in-house software and keeping up with changes.

4. Cost/Benefit analysis on how to roll-out E-Verify is critical.

Remember, under the proposed Federal Contractor rules, E-Verify applies to all new hires (whether assigned to the federal contracts or not) and to all employees assigned to the contracts. Under proposed Federal mandates, you have the option of applying E-Verify to all existing employees covered by your MOU with USCIS. State laws apply (so far) only to new hires. Currently, different locations can enroll in E-Verify.


E-Verify: “Best Practices”

5. Ultimately, given crazy patchwork quilt of state law and federal contractor mandates, once you are in E-Verify, you might as well apply it as broadly as possible. Caveat: there is only a 180 day window to roll it out .

6. Your HR Team needs 24/7 web-based access to I-9 and E-Verify processes to review real-time reports, monitor, train, and ensure compliance. You may not want to do it with the I-9 paper records and the government’s E-Verify software, which don’t link up and don’t issue alerts when work permits expire.

7. Cost/Benefit analysis. Compute the woman-hours needed to keep up with 5,000, 10,000 disconnected records. Avoid Risks of errors and “routine use of civil fines” per Morton at ICE.


E-Verify: “Best Practices”9. Same team responsible for I-9s should handle E-Verify. Avoid disconnect.

Integrate payroll, I-9 and E-Verify software systems.

10. False TNC (non-confirmation notices.) Escalate for review by well-trained E-Verify team. There are technical exceptions and E-Verify is now adapting software to be more flexible. Ultimately, counsel has to weigh whether to continue employing worker while waiting for resolution vs. risks of civil fine for continuing to employ despite Government saying: “this person is not a match.”.

11. Use of E-Verify should eliminate risks of ICE audits and create “Safe Harbor” from liability for substantive violations on I-9 Forms. Government resources are focused elsewhere. Government should go after the “Don’t Ask, Don’t Tell Employers”, not those wired into the SSA and DHS databases.

12. Recent USCIS proposed rule-making and MOA between USCIS and ICE raise, however, concerns about sharing of data in the E-Verify system for enforcement purposes.


Reducing Liability Risks from Contractors’ Immigration Violations

What are the Issues?

Wal-Mart I

Wal-Mart II

“Constructive Knowledge”: How defined?

How does this whole area overlap with E-Verify?

Special Problem: state law compliance


14 E-Verify States in Red as of April 2009, subtract Ilinois, by June 2009: Add 3 more: Arkansas, Nebraska, Utah


“Best Practices” For Reducing Risks from Contractors’ Immigration Violations

1. Know your contractor, sub-contractor, most importantly your sub-sub contractor.

2. Your preferred vendor contracts do not preclude parceling out contract work to smaller companies who may not be immigration-compliant. Should they?

3. Review contracts. Don’t leave it all up to the IT or other Line Managers. Add indemnification and certification clauses, including obligation (at contractor expense) to

hire outside auditor to verify that contractor’s employees are authorized to work. Wal-Mart and Verizon now impose these obligations on all contractors, who in turn flow-down these obligations to sub-contractors.

Prohibit any non-compete/liquidated damages clauses that preclude your recruiters/managerss from hiring away global talent from your contractors/subcontractors.

4. Confirm enrollment of sub-contractors on federal contracts in E-Verify and in States where E-Verify now applies. Very confusing area right now.

5. Consider requiring subcontractors to enroll in E-Verify for new hires as part of commercial contracts, particularly when out-sourcing for IT services or labor services.


“Best Practices” For Reducing Risks from Contractors’ or Other Company’s Immigration

Violations

7. Screen, centralize inquiries from workers requesting sponsorship for Green Cards so conflicts between status represented on I-9 Forms and status requested can be resolved.

8. Engage immigration counsel to assist with evaluation of requests by foreign national contractor employees to be hired directly by your company, evaluate legality under H-1B regulations of any employment contracts, payback provisions imposed by your contractors on employees.

9. M&A: special situation: due diligence, evaluation of I-9 Forms, status of any foreign national employees to avoid liability to successor firm. Allow for timely conversion of pending H-1Bs and Green Cards to new company. Avoid fines, violation of DHS and DOL regulations. Should you rely on E-Verify and I-9 filings of acquired company or re-start the process? Rules are currently different and/or in need of clarification.


Questions ? Questions ?

Eliot Norman , Immigration and

Worksite Enforcement Team804-783-6482 [email protected]

For updates: http://tinyurl.com/immupdates

www.williamsmullen.com/immigration

www.williamsmullen.com 1 webinar june 11, 2009 1 pm. edt. the “nuts and bolts” of e-verify are...

Documents

fine slide

day of work slide

bolts of electronic

new director of ice

hr managers

immigration question

new assistant secretary

broken immigration system