Compliance Issues When Employing Foreign National Employees or Contractors. Immigration Compliance Agenda

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SIGG MAY 8, 2018 Boston Hartford New York Providence Stamford Albany Los Angeles Miami

1 Compliance Issues When Employing Foreign National Employees or Contractors MEGAN R. NAUGHTON LAUREN M. SIGG MAY 8, 2018 Boston Hartford New York Providence Stamford Albany Los Angeles Miami New London rc.com 2018 Robinson & Cole LLP Immigration Compliance Agenda Pre-Employment During Employment Contractor Compliance Issues Post-Termination 2 1

2 Who Can Work In The United States? U.S. Citizens Lawful Permanent Residents Non-immigrants visa holders with employer-specific work authorization from the USCIS (e.g. H-1B, L-1 workers, etc.) Foreign nationals with work authorization (typically students on an EAD ) Others foreign nationals with work authorization (e.g. refugees, asylees, etc.) 3 Pre-Employment Compliance: Interviews/Application Questions OK: Are you currently authorized to work for all employers in the United States on a fulltime basis, or only for your current employer? Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)? AVOID: Are you a U.S. citizen? Were you born in the United States? Are you authorized to work for at least the next 12 months? 4 2

3 Pre-Employment Compliance Issues: Offer Letters Often depends on specific situation (sponsorship, etc.) General offer language may indicates that: Your employment is conditional upon your successful completion of the Form I-9 verifying both your identity and authorization to work in the U.S. 5 Avoiding Discrimination Cannot discriminate on the basis of: Citizenship status Immigration status National origin Cannot retaliate against someone who files a discrimination charge or asserts rights under the law. 6 3

What is a Form I-9? During Employment: I-9 Compliance Form I-9 is used to prove that the employer verified the employment eligibility and the identity of the employee Every U.S.

4 What is a Form I-9? During Employment: I-9 Compliance Form I-9 is used to prove that the employer verified the employment eligibility and the identity of the employee Every U.S. employer MUST have a Form I-9 for each new employee and all active employees, unless: Employee was hired before November 6, 1986, and continuously employed by the same employer; or The individual is a contractor (and thus, employed by a third party) 7 During Employment: I-9 Compliance (Timing) Two time periods: Section 1: Must be completed and signed by the employee on or before the first day of employment. Section 2: Must be completed by the employer within 3 business days of the employee s first day of employment. 8 4

5 Employee Completes Personal Info. Employee checks the appropriate box for work eligibility and signs/dates 9 Form I-9 Section 2 The employee must present an original document or documents that establish identity and employment eligibility. The Employees chooses which document(s) to present from the lists of acceptable documents -- The employer cannot specify what document(s) an employee provides! The company must visually inspect original documents in order to properly complete Section 2. The company must include the date employment began and must complete Section 2 within 3 days of employment. Employer is completing the Form I-9 under the penalty of perjury. 10 5

List A Documents establish both identity

doc. provided, must show List B and List

6 List A Documents establish both identity and employment eligibility If no List A doc. provided, must show List B and List C docs. Notes for special circumstances here, i.e., CAP-GAP List B establishes only identity. List C establishes only employment eligibility. 11 Some Common I-9 Documents List A Green Card U.S. Passport EAD 12 6

Some Common I-9 Documents List B and List C List B document List C document

birth certificate 13 Do NOT: Form I-9 Document Review Require specific documents

required (over documentation) Refuse to accept documents that reasonably appear

7 Some Common I-9 Documents List B and List C List B document List C document Unrestricted Social Security Card Valid Driver s License Original/certified birth certificate 13 Do NOT: Form I-9 Document Review Require specific documents or combination of documents Require more or different documents than minimally required (over documentation) Refuse to accept documents that reasonably appear to be genuine and authorize employment Accept photocopies (must see original documents) 14 7

During Employment: I-9 Audits ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers.

8 During Employment: I-9 Audits ICE audited 1,360 organizations in 2017, resulting in 71 indictments and 55 convictions of business owners and managers. In December 2017, Tom Homan, Deputy Director of ICE said: I want to see a 400% increase in work site operations....we're not just talking about arresting the aliens at these work sites, we are also talking about employers who knowingly hire people who are unauthorized to work." 15 I-9 Audit Targets Random audit Targeted Industry, including meatpacking, construction, agriculture and hospitality (hotels and restaurants) Leads, tips, or complaints Prior history of violations 16 8

from government contracts a court order requiring the payment of back pay to the individual

9 17 Penalties for I-9 Violations - Generally Employers who violate the law may be subject to: civil fines criminal penalties (when there is a pattern or practice of violations) debarment from government contracts a court order requiring the payment of back pay to the individual discriminated against a court order requiring the employer to hire the individual discriminated against 18 9

I-9 Fines Add Up! http://money.cnn.com/2018/01/15/news/economy/ice-immigration-work-site-crackdown/index.

10 I-9 Fines Add Up! 19 During Employment: I-9 Compliance Checklist Form I-9 (and E-Verify, if enrolled) training and policies Clear onboarding procedure/processes that includes timely completion of the Form I-9 Tickler system for re-verifications Process for updating information when status changes (H-1B to permanent resident, etc.) Policy/process to ensure proper storage/recordkeeping Conduct periodic self-audits 20 10

During Employment: ICE Raids Raids by Department of Homeland Security Immigration and Customs Enforcement (ICE) have increased 21 During Employment: ICE Raids Unless given

District Court or a State Court) Ask for a copy and read the warrant (make sure it is signed, remains valid, and for the correct location).

11 During Employment: ICE Raids Raids by Department of Homeland Security Immigration and Customs Enforcement (ICE) have increased 21 During Employment: ICE Raids Unless given permission, ICE agents can generally enter a private area ONLY with a judicial warrant. A judicial warrant must be signed by a judge ( U.S. District Court or a State Court) Ask for a copy and read the warrant (make sure it is signed, remains valid, and for the correct location). Administrative warrant do NOT allow agents to enter private areas without permission. If valid, contact legal counsel/management immediately Have appropriate employee monitor search (but do NOT interfere). Keep track of what is seized/taken

12 Checklist/Process Preparing for an Agency Visit Establish Compliance policy/procedure (including agency visit protocol) Identify the key employees who should be contacted in case of agency visit (including counsel/legal) Train employees regarding agency protocol (especially any front line employees) Document/record results of visit and timely complete any required follow-up (with legal counsel) 23 During Employment: Admin. Site Visit by USCIS Types of Petitions subject to site visits: Fraud Detection and National Security (FDNS) officers conduct compliance-review site visits on: Religious worker petitions (before + after adjudication) H-1B petitions (after adjudication) L-1 petitions (after adjudication) 24 12

13 During Employment Admin. Site Visit by USCIS During the site visit the officer will often: Verify the information, including supporting documents, submitted with the petition; Verify that the petitioning organization exists; Review public records (e.g. H-1B Public Access files); Request specific information regarding (and/or to speak directly with) one or more H-1B/L-1 employee(s), to confirm role/job duties, title, qualifications, salary, and work location(s); and Request financial information regarding the company and/or the employee s pay records Ask for data re company s sponsorship of others for nonimmigrant or immigrant status 25 During Employment Admin. Site Visit by USCIS Average of 7,200 site visits during FYs This was lower than the goal (e.g. 10,000 visits for FY 2016) But expect an increase! The FY 2018 goal for site visits is 20,000, including targeted site visits when: Employer's business information cannot be verified through commercially available data. Employer is H-1B dependent (i.e. they have a high ratio of H- 1B workers to U.S. workers). Petitions for workers to work at a third-party location

14 Is E-Verify Right for You? Voluntary enrollment unless required to use it by state or federal law. Only for use for new hires or re-hires (unless required to use E-Verify as federal contractor). Using E-Verify creates a rebuttable presumption that the employer has not violated laws regarding knowing employment of unauthorized aliens. Cannot be used to pre-screen employees. Employer must sign a MOU with the DHS and the SSA that sets out terms of use and a commitment of indefinite duration. 27 During Employment Other Immigration Compliance Issues Deemed Export Rules Ensure that all technical data is correctly characterized Ensure that only U.S. Persons (i.e. U.S. citizens, Permanent Residents, Asylees, Refugees) have access to controlled technology, unless obtain a license Obtain Export Control License where required (or have compliance plan) 28 14

15 Contractor Compliance Issues Ensuring work authorization (include contract term/indemnity provision in contractor agreements?) For contractors who are placing H-1B workers at a site: LCA posting requirements Increase in scrutiny for H-1B petitions for third party sites Increase in requests from the contracting company for letters in support of H-1B petitions We have also seeing an increase in USCIS/DOS requests from end client to confirm information regarding contractors on site (requesting copies of work orders and/or agreements) 29 Post-Employment: Form I-9 Retention 30 15

16 Post Employment Issues Other retention requirements: Maintain immigration petitions for required period Maintain PERM audit files (if necessary) Maintain Public Access files for H-1B workers 31 Questions 32 16

I-9 Compliance, Audits, and E- Verify

I-9 Compliance, Audits, and E- Verify Presenter Kim Kiel Thompson, Esq. Chair of Global Immigration Practice Group Co-Chair of International Employment Practice Group University of Miami School of Law,