1/20/2014. Overview. Immigration Reform in 2014? Senate versus House. Interior Enforcement. Border Security

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1 Fisher & PhillipsLLP ATTORNEYS AT LAW Solutions at Work What does Immigration Reform Really Mean for your Recruitment and Hiring Strategies Presented by: Amy Lessa, Esq. and Kim Kiel Thompson, Esq. Phone: (858) and Atlanta Boston Charlotte Chicago Cleveland Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC Overview What will immigration reform look like? Increased Government Oversight E-Verify ICE Audits, Changes to Form I-9 and Self Audits Work Visas Amnesty/Legalization Immigration Reform in 2014? Senate versus House Increased Border Security Mandatory E-Verify Path to Citizenship W Visa for Low Skilled workers Increased Employment-Based Green Card Numbers Agricultural Workers Increasing H-1B Visas Senate Bill passed in June House approach is step-bystep/piecemeal. Greater expectation for bipartisan support of immigration reform. President Obama very supportive of immigration reform. Border Security Senate Bill develop effective control plan for Southern border and strategy to secure the border. More fencing, surveillance equipment, other assets deployed on Southern border Goal 90% effectiveness rate, significant reduction in illegal drugs/contraband. Double Border Patrol Agents at Southern Border, deployment of unmanned surveillance aircraft. Interior Enforcement Increased worksite governmental actions in form of I-9 Notices of Inspection, Subpoenas, Warrants. Document fraud provisions. Civil monetary penalties. Criminal fines and imprisonment. Document fraud, smuggling/harboring violations. 1

2 E-Verify Mandatory for all new hires or rehires. Phase-in based on employer size (6 months to 2 years). May be able to make offer conditional on E-Verify final verification. Federal law will preempt State law. E-Verify Overview - Rules Cannot use to re-verify employment authorization of current/existing employees (unless Federal Contract) Must allow employees to contest a mismatch (Tentative Nonconfirmation) and take no adverse action against employee while case is being resolved Cannot use to discriminate E-Verify Implementation Notifying Prospective Employees Participating employers are required to post the English and Spanish notice provided by DHS Photo Match Occurs when you create a case for an employee who presents one of following for I-9 Form: U.S. Passport or Passport Card Permanent Resident Card (I-551) Employment Authorization Document (I-766) Must make a copy of the Employee s I-9 form photo document and retain with I-9 form Employment Authorized Information matches SSA and DHS databases - Employment Authorized - Electronic I-9 system will close case Employment Authorized message but name does not match exactly names do not match? Click Request Name Review Case referred for DHS review Employment Authorized or DHS TNC Interim Case Results Requires Additional Action SSA Tentative Nonconfirmation (SSA TNC) Social Security information could not be verified DHS Tentative Nonconfirmation (DHS TNC) Information matches SSA records but not DHS records Review and Update Employee Data SSA or DHS Case in Continuance 2

3 Tentative Nonconfirmation (TNC) Promptly notify employee of TNC discuss in private setting Print Notice to Employee of TNC Employee may contest or not contest case result - checks box on Notice Contest: Initiate referral to SSA/DHS Not Contest acknowledges employer may terminate employment Employee and HR sign original Notice keep original & give employee copy Final Case Resolution Employment Authorized SSA or DHS Final Nonconfirmation E-Verify cannot verify information Close case May terminate employee DHS No Show Employee did not contact DHS Considered Final Nonconfirmation Error: Close Case and Resubmit Expiration date on document incorrect Submit new query for employee Close Case ICE Arrives - Notice of Inspection All cases created must be closed Respond to question Is the employee currently employed with this company? Yes continue employment No terminate employment Select a closure statement: Examples: The employee continues to work for the employer after receiving a Final Nonconfirmation result; The employee was terminated by the employer for receiving a Final Nonconfirmation result; The employee voluntarily quit working for the employer. 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. 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.) I-9 Form Changes Section 1: Employee address and phone number (optional) Employee who selects Alien Authorized to work until & who was issued an I-94 card, needs to list foreign passport # & country of issuance 3

4 Changes to Form I-9 Section 2 Section 2: Employer Employee s name on top of Section 2; List A now has room to list three documents; Documents, List C, #1 provides additional information/clarification about what is an acceptable SS card; and The List A Acceptable Documents includes a reference to Section 2 of the Handbook for Employers regarding information about acceptable receipts. Section 2: Certification Changes to Form I-9 Section 3: Re-verification & Rehires Adds numbers to the things the HR representative must attest to when reviewing the documents. Separates out the place where the employer is required to insert the employee s first date of work for pay. Provides clarification that List B identity documents do not require re-verification; and Adds a field for the Employer representative to print his/her name. Section 3 - Reverification If employee s authorization to work in U.S. will expire reverify. If rehire employee within 3 years of original hire date may reverify use current version of Form I-9. If employment authorization document originally presented is still valid, no need to review document. Completing I-9s for Deferred Action For Childhood Arrivals Unexpired EAD issued to deferred action recipient - acceptable List A document. If EAD presented, do not ask for additional proof. When EAD expires, employer must reverify employment eligibility no later than expiration date. If existing employee provides DACA EAD or change of information, complete new I-9 with original hire date & attach to previous I-9. 4

5 Self-Audit Getting Started Generate a list of all current employees. Include name, date of hire, and distinguishing fact (SSN or DOB). Pull I-9 forms for all current employees. Make sure that you have an I-9 form for each employee on the list. Make a note on the list if an I-9 form is missing for a particular employee. Missing Form I-9 If you determine that an I-9 form is missing for a current employee complete a form immediately. Ask employee to complete Section 1, sign and date (with current date). Complete Section 2 (insert original start date) and sign and date (with current date). Self Audit Review Form Making Corrections Review each I-9 form for errors. Use stick-on notes to highlight errors. Things to look for: Missing information Incomplete listing for documents Signatures in Sections 1 and 2 Section 1 Status Box Checked Too many documents in Section 2 Was the correct version of the form used? Correct errors, as allowed, on each form. Section 1 Employee makes corrections. Section 2 Employer makes corrections. Strike through errors do not use White Out or Liquid Paper. All corrections should be initialed, dated, and include the words Per Self Audit. Most Common I-9 Mistakes Sample Audit Section 1 Work status box not checked. Section 2 Start date missing. Section 2 Issuing authority missing for document. Section 2 More documents requested/listed than required. 5

6 Sample Audit Things to Remember DO NOT reverify expired U.S. passports or passport cards, Unrestricted Permanent Resident Cards, or List B Identity documents. As of April 3, 2009, expired documents may not be accepted (with some exceptions). Social Security card marked Not Valid for Employment or Only Valid with DHS Authorization is not acceptable List C document. 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 Intent to Fine. Notice of Suspect Documents. Notice of Discrepancies. Warning Notice. Notice of Intent to Fine employer has opportunity to negotiate settlement or request hearing. Current Penalties I-9 substantive/uncorrected technical violations (e.g., missing I-9) range from $110 to $1,100 per violation. Knowing hire/continuing to employ violations range from: $375-$3,200 (1 st violation) Criminal Violations imprisonment and fines. Determining Penalty Amounts Factors for enhancement 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. Recruitment and Hiring Strategies How will increased enforcement impact recruitment and hiring? What steps will need to be taken/implemented to protect the company and management? How will mandatory E-Verify affect hiring and staffing? Do you have I-9 and E-Verify policies? 6

7 Work Visas High-skilled Temporary Workers H-1B Professional Increase of visa numbers Higher filing fees Additional recruitment requirements Audits. L-1 Intracompany Transferees Restrictions on outsourcing and outplacement Additional application requirements for new office Other Skilled and Professional Workers Free Trade Agreement countries Non-Agricultural Guest Workers Revise H-2B procedures and controls. Create W-1 visa not limited to seasonal or temporary work and no USDOL labor certification. Registered positions (generally lower-skilled occupations in metro areas where unemployment rate 8.5% or lower. Range from 20,000 to 200,00 per year. Permanent Residence Merit based system for allocating visas. Reduce and possibly eliminate current family-based visa queue. Create caps per category. Eventually eliminate U.S. sibling category. Employment based giving higher preference to advanced degree holders with U.S. job offer (including physicians). STEM Degree holders Legalization Registered Provisional Immigrant (RPI) status Present in U.S. since 12/31/2011 Meet other requirements. Blue Card status For eligible agricultural workers Path to LPR status Naturalization Path to Citizenship Hiring Strategies With the creation of new and more temporary work visas, how will this factor into your planning for hiring? How will you handle current employees coming forward with new documents? If you hire/employ foreign workers, what kind of steps do you need to take to ensure compliance and timely start dates? I-9 Electronic Storage Replace paper I-9 forms by creating and storing I-9s electronically. DHS allows electronic I-9 storage. For new hires and current employees. Some electronic I-9 products allow for E-Verify synchronization and automatic expiring documents notification. 7

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