Shanon R. Stevenson. Phone: (404)

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Government Audits and Investigations, and I-9 Compliance

1 Immigration Compliance Under A New Administration: Resolving Talent Shortages Using Work Visas, Handling and Avoiding Government Audits and Investigations, and I-9 Compliance Shanon R. Stevenson Phone: (404) sstevenson@fisherphillips.com

2 Overview I-9 Form Revisions (11/14/2016 Version) I-9 Basics and Common Questions/Issues ICE Audits and Penalties Compliance Under the New Administration Talent Shortages Work visas

3 Changes to the I-9 Form New version (11/14/2016) effective 1/22/ All prior versions no longer valid after 1/21/2017. Instructions for new form 15 pages. Instructions must be available for employee to review. I-9 Handbook for Employers updated s/files/form/m-274.pdf

4 Changes to I-9 Form (cont d)

5 Section 1 Immigration Status

6 Preparer/Translator

7 Section 2 Employee Name/Status

8 I-9 Basic Requirements All employees hired after November 6, 1986 must have a I-9 form on file. Section 1 - completed by employee no later than start date of employment. Section 2 - completed by employer by end of third business day after employee starts work. May complete form prior to start date if offer of employment is made and accepted. Insert N/A in all fields where no information is available.

9 Properly Completed Section 1

10 Properly Completed P/T Section

11 Properly Completed Section 2

12 Section 3 - Reverification If employee s work authorization will expire you need to re-verify no later than the date of expiration. If rehire employee within 3 years of original hire date may use Section 3 on current version of Form I-9 or complete new I-9 form. New name use Section 3.

13 Properly Completed Section 3

14 6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I- 94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI List of Acceptable Documents List A Docs that Establish both Identity & Employment Authorization 1. U.S. Passport or Passport Card 2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551) 3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV) 4. Employment Authorization Document (Card) that contains a photograph (Form I-766) 5. In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form

15 List of Acceptable Documents List B Identification & List C Work Authorization LIST B: Documents That Establish Identity For individuals 18 years of age or older: 1. Driver s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address 2. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address 3. School ID card with a photograph 4. Voter s registration card 5. U.S. military card or draft record 6. Military dependent s ID card 7. U.S. Coast Guard Merchant Mariner Card 8. Native American tribal document 9. Driver s license issued by a Canadian government authority For persons under age 18 who are unable to present a document listed above: 1. School record or report card 2. Clinic, doctor or hospital record 3. Day-care or nursery school record LIST C: Documents That Establish Employment Authorization 1. U.S. Social Security account number card, unless the card included one of the following restrictions: (1) Not valid for Employment (2) Valid for work only with INS Authorization (3) Valid for Work only with DHS Authorization. 2. Certification of Birth Abroad issued by the U.S. Department of State (Form FS-545) 3. Certification of Report of Birth issued by the U.S. Department of State (Form DS-1350) 4. Original or certified copy of a birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing an official seal 5. Native American tribal document 6. U.S. Citizen Identification Card (Form I-197) 7. Identification Card for Use of Resident Citizen in the United States (Form I-179) 8. Employment authorization document issued by DHS

16 Document Acceptance Standards The I-9 states that you must review the original documents presented to determine if they are genuine and relate to the person presenting them to you.

17 Document Acceptance Standards Reasonable?

18 Valid LPR Card?

19 Outdated LPR/Green Card No longer resembles person, not acceptable

21 Example: Unacceptable List B Document

Social Security Number Card There are at least 50 valid versions of the Social Security Number Card: Example 1: UNRESTRICTED SS cards: Valid for Work

22 Social Security Number Card There are at least 50 valid versions of the Social Security Number Card: Example 1: UNRESTRICTED SS cards: Valid for Work Authorization. Example 2: RESTRICTED SS cards: Not valid for Employment ; Valid for work only with INS Authorization and Valid for Work only with DHS Authorization.

23 Unacceptable List C Document

24 List A Identification and Work Authorization Must Re-verify Prior to Expiration Date Unexpired Foreign Passport with I-551 Stamp Employment Authorization Document (Form I 766)

25 Common Questions What do I do if an employee comes forward with new documents for a new name or SSN? How do I complete I-9 forms for remote employees? Do I re-verify expiring permanent resident cards? Is it okay to pre-populate Section1 using our HR/On-boarding system? What is TPS and how do I re-verify someone in this status? When a new version of the I-9 form is issued by the government, am I required to prepare new forms for existing employees?

26 Retention Requirements Once employee terminated, you must retain I-9 form for: At least three years from date of hire; and At least one year from date of termination; Whichever is later. Once retention requirements met, purge/shred form.

27 Section 1 Common Errors Employee completed Section 1 after commencing work Not Correctable. Employee did not check box regarding authorization to work in the U.S. Correctable. Missing Social Security number - Not required (unless using E-Verify at time of hire). Employee did not sign/date Correctable w/ current date.

28 Section 2 Common Errors No Start Date Listed in Certification Box - Correctable. Issuing Authority, Document Number, and/or Expiration Date missing for identity and work authorization document(s) - Correctable. Too many or too few documents listed - Correctable. Employer signature box incomplete Correctable.

Immigration Enforcement ICE made 452 criminal arrests tied to worksite enforcement investigations -179 were owners, managers, supervisors or human

29 Immigration Enforcement ICE made 452 criminal arrests tied to worksite enforcement investigations -179 were owners, managers, supervisors or human resources employees. Charges include harboring or knowingly hiring illegal aliens. Employees arrested for aggravated identity theft and Social Security fraud.

30 Record-Breaking Immigration Enforcement 3,127 Notices of Inspection and 637 Final Orders, totaling $15,808, in administrative fines. ICE debarred 277 business and individuals for administrative and criminal violations. ICE believes utilizing enforcement, compliance and outreach is an effective approach to deter illegal employment and create a culture of compliance. HSI prioritizes investigations involving critical infrastructure and key resources. No industry, regardless of size, type or location is exempt from complying with the law or being the subject of an ICE investigation.

Largest Immigration Fine in History $34 Million Dollar Fine Texas software company fined for, among other immigration violations: Failing to maintain I-9 records for

31 Largest Immigration Fine in History $34 Million Dollar Fine Texas software company fined for, among other immigration violations: Failing to maintain I-9 records for many of its foreign nationals; and Widespread failure to update and re-verify the employment authorization status of a large percentage of its foreign national employees.

32 Protect Your Business I-9 audit may be foundation for raid, civil money penalties and criminal sanctions. Ensure I-9 compliance programs are in place, up-to-date, and followed. Conduct regular internal I-9 audits and remedy identified errors. Have outside counsel conduct periodic I-9 audits.

33 ICE Arrives - Notice of Inspection Three days notice prior to ICE review of I- 9 Forms allowed (may waive but not recommended). Original, microfilm, microfiche or electronic I-9 forms acceptable for inspection. Personal appearance to give testimony and turn over documents may be required. Subpoena/warrant not required for I-9 inspection.

34 What May Be Inspected? I-9 Forms for current employees hired after Nov. 6, I-9 Forms for terminated employees within the required retention period. Electronic employee listing. Quarterly wage and hour reports. Payroll data. SSA Mismatch correspondence. E-Verify and/or SSNVS documents. Business information (Employer ID number, owner s SSN/address, business licenses, etc.)

35 After ICE Inspection ICE issues Notice of Inspection Results if found in compliance. If not in compliance, may receive: Notice of Technical or Procedural Failures Notice of Suspect Documents Notice of Discrepancies Warning Notice Notice of Intent to Fine Notice of Intent to Fine employer has opportunity to negotiate settlement or request hearing.

36 Search Warrant No 3 day notice required. Review search warrant. Monitor the search but do not interfere. Comply with terms of warrant. Do not resist. Notify/contact management and legal counsel immediately. Keep track of what is seized/taken.

37 IRCA Prohibited Acts CANNOT: Knowingly hire an alien who is not authorized to work. Hire any individual without verifying identity and work authorization. Continue employing person if you know or should know person is not authorized to work.

38 Monetary Penalties I-9 substantive/uncorrected technical violations (e.g., missing I-9) range from $216 to $2,156 per violation. Knowingly hire/continuing to employ violations range from: $539-$4,313 (1 st violation) $4,313-$10,781 (2 nd violation) $6,469-$21,563 (Subsequent violation)

Determining Penalty Amounts Factors considered for enhancement of fine or mitigation: Good faith effort to comply; Seriousness of violation; Whether the violation involved

39 Determining Penalty Amounts Factors considered for enhancement of fine or mitigation: Good faith effort to comply; Seriousness of violation; Whether the violation involved unauthorized workers; Size of business; and History of previous violations. Violation percentage calculated to determine amount of fine for first, second, subsequent violations.

40 Criminal Penalties 10 years and/or $250,000 fine for harboring, smuggling, concealing, or transporting illegal aliens for financial gain. Criminal sanctions for conspiracy to harbor, smuggle, conceal, or transport.

41 USDOJ Discrimination Charges Charges of Discrimination I-9 Violations Citizenship Status Immigration Status National Origin Retaliation E-Verify Violations

42 Predictions for Immigration Under New Administration Mandatory E-Verify nationwide. Tightening up/securing the border. Increased enforcement actions with focus on employers (e.g., I-9 audits, inspections, and raids). Increased deportations. Cancellation of DACA. Changes in the H-1B Professional Worker Category.

43 Executive Orders on Immigration 1/27/ Protecting the Nation from Terrorist Entry into the U.S. by Foreign Nationals Created an immediate freeze on all entry for individuals from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan. Both immigrant and non-immigrant visa holders were impacted by the executive order. The order also placed a 120-day ban on the U.S. refugee program and an indefinite suspension of Syrian refugee admissions. In response to widespread protests and confusion at airports around the world, the White House soon clarified that the executive order was not intended to apply to lawful permanent residents or those with dual nationality.

44 Executive Orders on Immigration 2/3/2017 Federal Court Blocks Executive Order Blocks 90-day travel ban on immigrants and nonimmigrants from designated countries; Blocks 120-day ban on the U.S. refugee program; Blocks indefinite suspension of Syrian refugee admissions; and Blocks case-by-case handling of refugee admissions. Judge Robart, appointed by President George W. Bush, found no support for the administration s argument that it had to protect the U.S. from individuals from the affected countries. He stated that the order adversely affects residents in areas of education, employment, education, and freedom to travel. 3-Judge Federal Court panel agreed

45 Executive Orders on Immigration 3/6/17 - effective March 16, Creates 90-day freeze on all entry for individuals from Syria, Iran, Libya, Somalia, Yemen, & Sudan who are outside the U.S. on March 16, did not have a valid visa at 5 pm EST on 1/27/17, & do not have a valid visa on 3/16/17. Now excludes Iraq. Does not apply to LPRs or dual citizens who have citizenship in a country other than one of the 6 countries. Reinstates the 120-day suspension of the Refugee Admission Program. Does not apply to refugees who have already been formally scheduled for transit by the Department of State. Legal challenges filed & more expected - DHS report found country of citizenship is unlikely to be a reliable indicatory of potential terrorist activity, & that few people from the 6 countries have been involved in terrorism-related activities in the U.S.

46 Travel Ban Blocked Again 3/15/2017 Federal judge in Hawaii ordered the president s second travel ban be temporarily blocked on a national basis. Characterizing the second travel ban as plainly motivated by religious discriminatory animus against Muslims, Judge Watson granted the state of Hawaii s request for a temporary restraining order, and set into motion the latest chapter of the continuing legal battle over the president s immigration policies. The situation is very fluid and changing on a near-daily basis

47 Executive Orders on Immigration If the employees from 6 countries are abroad, they should return prior to March 16, 2017 If employee is in the U.S. and is reaching the visa expiration date, extend the employee s stay in the U.S. FNs who had visas revoked or cancelled should take immediate steps to get their visas reinstated before 3/16/17. FNs in U.S. should carry originals or clear copies of their legal authorization to be in the U.S. at all times If stopped by a U.S. Immigration and Customs Enforcement agent, or any other law enforcement officer, employees should to be prepared to cooperate and present evidence of their U.S. immigration documentation. Foreign national should not sign any forms or other paperwork without consulting with an immigration attorney.

48 STEM Labor Shortages While the 2016 STEM Index shows increases in STEM degrees granted and STEM hiring, U.S. continues to have a shortage of STEM workers. There were 30,835 additional STEM graduates and 230,246 additional STEM jobs from STEM jobs have increased much faster than overall employment: 28 percent since 2000 compared to 6 percent for all jobs. Computer jobs hold the top seven positions for the highest number of employees. 3 out of 5 of the highest paying STEM salaries are in IT-related fields. Information Systems Managers have a yearly salary of $141,000; Computer Research Scientists are paid $115,580; and Computer Hardware Engineers make $114,970.

49 Temporary Visas Each visa category has its own specific documentation and evidence requirements. Not all temporary visas authorize employment. A foreign national can to be in the U.S. lawfully, but not be allowed to work. Employment visas typically authorize employment only in a specific position and for a specific employer. Any other employment is prohibited.

50 H-1B Threshold Requirements Job Must Require for Entry: Bachelor s degree (or equivalent); Professional level position. Employer promises: Pay greater of actual or prevailing wage No adverse effect on working conditions No strike or lockout Provide notice to workers Create Public Access File H-1B Dependant Employers Additional Attestations

51 H-1B Procedures Obtain Prevailing Wage. Obtain Degree Equivalency Certificate, if necessary. File Labor Condition Application with U.S. Department of Labor. File Form I-129 Petition with U.S. Citizenship and Immigration Services. Petition approval for up to 3 years. Maximum admission 6 years.

52 H-1B Annual Quota NEVER HAD H-1B BEFORE: Cap of 65,000 Visas/Year. 20,000 Extra Visas/Year for U.S. Master s or Higher Degree. Cap Exempt Higher Education institutions, nonprofit or governmental research organizations. Once USCIS receives enough cases to reach cap may hold random selection (lottery) for cases received last day. Employment Start Date October 1.

53 H-1B Things to Remember May be required to pay return transportation costs if H-1B employee dismissed before end of approval period. Change of employer may commence work for new employer when H-1B petition received by USCIS. Timely filed extension of stay continues employment for 240 days while processing. Extensions beyond 6 year max possible.

L-1 Intracompany Transferee L-1A Manager/Executive Maximum stay 7 years. Fast track to Permanent Residence L-1B Specialized Knowledge Special knowledge of company product, service, equipment, etc.

54 L-1 Intracompany Transferee L-1A Manager/Executive Maximum stay 7 years. Fast track to Permanent Residence L-1B Specialized Knowledge Special knowledge of company product, service, equipment, etc. Maximum stay 5 years. Requirements: One continuous year (within past 3 years) of employment with foreign branch or affiliate; Qualifying relationship between U.S. and foreign employer. Dependents eligible for employment authorization.

55 TN NAFTA Professional Available for Canadian and Mexican Citizens. Job must be professional or require expertise. Limited to 80 specific job categories. Job must be temporary. Initial admission up to 3 years. Renewable indefinitely.

56 fisherphillips.com FINAL QUESTIONS

57 THANK YOU F O R T H I S O P P O R T U N I T Y Shanon R. Stevenson Phone: (404) sstevenson@fisherphillips.com

Immigration Compliance

Immigration Compliance Davis C. Bae Regional Managing Partner, Fisher Phillips dbae@ / (206) 693-5060 Robert Gibbs Partner, Gibbs Houston Pauw rgibbs@ghp-law.net/ (206)224-8790 ICE Growth and Directives