Immigration Compliance and Visa Processing Under the Trump Administration By Jon Velie

Transcription

1 Immigration Compliance and Visa Processing Under the Trump Administration By Jon Velie

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3 HOUSEKEEPING CREDIT QUESTIONS TOPIC

4 HOUSEKEEPING Certificates delivered by no later than 6/31/17 Be watching using YOUR unique URL for login Stay on the webinar, online for the full 60 minutes. The use of this seal confirms that this activity has met HR Certification Institute's (HRCI ) criteria for recertification credit pre-approval. Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at

5 Today s Presenter Jon Velie, Attorney at Law 24 years of experience Immigration Law, Corporate Law, and Litigation. Testified in court as expert on immigration matters. Spoke at US Congressional and agency panels, companies and Universities and professional and legal associations. Briefed three cases to the U.S. Supreme Court Featured in numerous publications including the New York Times, LA Times, Washington Post, Chicago Tribune, Le Monde, and London Times, and featured on a segment of CBS 60 Minutes II. #1 Best Selling Author Represents many world class individuals and companies. Founded Online Visas, the revolutionary Immigration platform

6 AGENDA Section I: Enforcement and Compliance Recent and Historic ICE enforcement trends Be prepared for an ICE Raid What to do if they raid Employee s rights After a raid Constructive and actual knowledge Rapid Response Team Creating a compliant workplace I-9 compliance Dealing with No-match letters Safe-harbor procedures Penalties for immigration violations

7 A Brief History Who is I.C.E.? The United States Immigration and Customs Enforcement (ICE) is the investigative arm of the Department of Homeland Security (DHS). Formed in the wake of 9/11 as part of a massive reorganization campaign designed to protect the country from future attacks. ICE agents have a wide variety of duties under the law, and they can be found serving in an assortment of locations around the world. One aspect of its practice is to audit U.S. employers, and their employees, through I-9 audits and other investigative means such as informants and wiretaps.

8 A Brief History ICE s worksite enforcement activity has recently surged under the Trump presidency. Immigration related detainments have been reported across the United States.

9 A Brief History The Trump Administration has expanded its raids to include not only those with criminal records, but also individuals who are merely undocumented. USA Today, Trump immigration raids show greater focus on non-criminals 2/16/17

10 A Brief History In its most recent surge of enforcement activity, ICE officers arrested more than 680 individuals across the nation during the second week of February 2017 alone. A Brief History Statement by DHS Secretary John Kelly 02/13/2017

11 Be Prepared for an ICE Raid

12 Be Prepared for an ICE Raid Advise employees indirectly, through conversations with Attorneys or documents created by Attorney that inform individuals of their rights, including know your rights cards in Spanish and English with Attorney s contact info. Note: Do not pass these cards out through your company or employees, but utilize other organizations to distribute them.

13 Be Prepared for an ICE Raid Examine Warrant and Fax or to your Attorney Do not allow access without a warrant. Is it signed by the proper court? Is it being served within the permitted timeframe? Note the scope of the warrant, area to be searched, and items to be seized. Immediately contact your attorney.

14 What to do if ICE raids your business Monitor the search process Obtain the name of the supervising ICE agent and U.S. Attorney assigned to the case Assign company representatives to silently follow each agent around the facility and take notes or record that agent s actions (without interfering). If agents want access to locked facilities that are listed in the warrant, unlock them otherwise agents will forcibly gain entry. Take no actions that could be construed as inducing perjury, such as telling people to provide false information or documents.

15 What are Employees rights? Employees have the right to remain silent, and should present the know your rights card and exercise their right to speak to their attorney Employees not listed on the warrant may decline a mobile finger print scan. Employees should not sign anything without conferring with an attorney. Employees should not carry documentation from another country because it can be used as evidence against them.

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17 After the ICE Raid

18 After the ICE Raid Once employees are detained, whether from the work place or otherwise, a conflict of interest then arises. You should arrange for counsel to represent them and pay the bail as soon as possible. The longer an employee remains detained, the greater the likelihood that the employee will be intimidated in order to provide adverse information against a company in exchange for a work permit.

19 After the ICE Raid ICE may issue the employer a DO NOT REHIRE list. The employer may not continue to employ any worker found on this list. ICE may continue to investigate a company for months or years after a raid to see if: After the ICE Raid Banned employees are returning using different identities Banned employees are placed in different worksites Banned employees are assigned to a graveyard shift in order to avoid detection

20 After the ICE Raid Undercover ICE agents may pose as prospective employees to see if they are hired after admitting they lack work authorization ICE will cooperate and collaborate with various government agencies such as the Internal Revenue Service and the Social Security Administration ICE and the U.S. Attorney will thoroughly review the items seized during the raid to determine the extent of evidence that exists against a company

21 After the ICE Raid Company should secure separate counsel for targeted employees and the Company Attorney can retain a private investigator to interview all potential witnesses, including apprehended workers. Attorney will obtain copies of all seized documents in order to determine if there is incriminating data Where a raid occurs at one worksite, the Attorney can immediately coordinate an immigration audit of other company worksites.

22 After the ICE Raid Attorney can develop for Company a corporate immigration compliance program, which will later benefit the Company and help in negotiations with the U.S. Attorney and ICE. Make every effort to recruit a legal workforce to replace those detained in the raid. After the evidence has been examined and the private investigators have concluded, Attorney and Company will meet to determine whether to negotiate a plea pre-indictment or to wait and see the evidence against the company.

23 Constructive Knowledge and Actual Knowledge Pursuant to 8 CFR 274a. 1(l)(1), the term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition also know as constructive knowledge.

24 Constructive Knowledge Constructive knowledge may include, but is not limited to, situations where an employer: 1. Fails to complete or improperly completes the I 9;(8 CFR 274a. 1(l)(1)(i)) 2. Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; (8 CFR 274a. 1(l)(1)(ii) 3. Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf. (8 CFR 274a. 1(l)(1)(iii).

25 Constructive Knowledge Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. It is a civil rights violation for Employers to request more or different documents than are required for the I-9 or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual. 8 CFR 274a. 1(l)(2). Employers should not inquire about a worker s ability to work outside of very specific questions at the interview or onboarding process.

26 Constructive Knowledge U.S. v. Collins Foods Int l, Inc., OCAHO No (Jan 9, 1990) Court found that employer should have known that the employee was not work authorized because of: the delay of the employee producing a social security card, the misspelling of the employee s name on the social security card, the lack of a reference to the United States of America on the card, and the use of two last names on the employee s driver s license and only one last name on the social security card. Due to these issues, the employer was found to have deliberately failed to inquire into the immigration status of the employee in an attempt to avoid learning that the employee was not, in fact, work authorized.

27 Constructive Knowledge Constructive knowledge also includes the failure to take reasonable steps to address the following situations: An employee request for the employer s sponsorship for a labor certification or visa petition Receipt of a no-match letter from the Social Security Administration ( SSA ); and Receipt of a notice from the Department of Homeland Security ( DHS ) that the employment authorization documents presented in connection with the completion of the I-9 form do not match the DHS records (Refer to Safe Harbor discussion)

28 Constructive Knowledge The best way to avoid any inference or allegation of constructive knowledge is to: (A)Avoid asking the wrong questions of your workers, (B)Be compliant with any immigration laws and properly respond to no match letters, and MOST IMPORTANTLY (C)Create another layer of protection between you and your workers by having a Rapid Response Team on standby.

29 Develop a Rapid Response Team Assemble a legal Rapid Response Team comprised of attorney s, investigators, removal defense counsel, translators, case managers, and PR professionals. The Rapid Response Team will gather facts about the raid, help locate and represent detained individuals, and assist with caring for minor children whose parents are detained. If ICE denies access to counsel, the Rapid Response Team will contact the Executive Office for Immigration Review s chief counsel and facilitate attorney s access to the detainees. Attorney will introduce other attorneys who specialize in constitutional, criminal, and family law matters in case ICE violates civil liberties, the government files criminal charges, or the detainees have minor children.

30 Develop a Rapid Response Team A well organized Rapid Response Team will coordinate among members from the media, the ICE detention center, the government, and the community to determine when raids are happening or imminent. Attorney will help coordinate with the Restaurant Association to form a network that will help alert all participants to ICE enforcement activity in the area. This can be facilitated via Google alerts, text alerts, and word of mouth.

31 AVOID AN ICE RAID: MAINTAIN COMPLIANCE

32 Creating and Maintaining a Compliant Environment If you do not have an HR software system, maintain I-9 notebook of current employees, do not include in personnel file Maintain I-9s for termed employees for three years from date of hire or one year after the date employment ends, whichever is later Conduct internal audits of I-9 s regularly Use HR Software that automatically processes and stores I-9 s Use HR Software that uses E-verify SSNVS IMAGE Program

33 What is the I-9 Employment Eligibility Verification Law? The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify: work authorization AND identities of all new employees within 3 days of hire

34 I-9 Employee Section

35 I-9 Issues Hiring personnel must determine whether the documents appear to be genuine. A company may keep or not keep copies of the documents. But it must be consistent. Hiring personnel must be knowledgably of new hires privacy rights. Violating privacy rights may subject employer to lawsuit

36 Triggers for an I-9 Investigation Complaints to Immigrations and Customs Enforcement (ICE), Department of Labor (DOL) or Office of Special Counsel (OSC) Independent investigations by ICE, DOL, or OSC National security concerns Businesses perceived to employ undocumented aliens Random audits

37 When an I-9 Violation Occurs Failing to complete or incorrectly completing I-9 records Knowingly hiring or continuing to employ an unauthorized alien

38 What Constitutes Knowingly Hiring or Employing an Unauthorized Alien To employ a worker that employer knows is not authorized to work in the U.S. Knowledge includes both actual knowledge as well as constructive knowledge that can be inferred through specific facts or circumstances Properly completing an I-9 does not absolve employer from liability if employer knows worker is not authorized

39 Social Security Mismatch Letters: Constructive Knowledge When employer gets one: Mismatch between employer and SSA data What it means: Not a per se statement about immigration status How employers should deal with them: Act quickly and follow procedure. Failure to follow privacy rights of employee is a violation of regulation and may subject you to fines or lawsuit

40 ICE s Safe Harbor Procedures Within 30 days of receipt of a no match letter: 1. Check for clerical errors A. Check for personnel and payroll records to determine whether the mismatch discrepancy B. If yes, file new W-2 with SSA. Use SSNVS to verify it was accepted. C. Make a record of the manner, date and time that the corrected information was verified with SSA and retrain the record with the employee's I-9 form. 2. Check with employee to ensure that his or her social security number info is correct. Determine if discrepancy is result of clerical error; inform Social Security.

41 ICE s Safe Harbor Rule: SSA Mismatch Letters Within 60 days of receipt: If issue is not resolved, complete a new Form I-9, except employee may not prove identity or work authorization by presenting a document that contains the suspect number. Complete Form I-9 within 3 days of the 60th day of receipt of SSA notice. If employee is unable to produce appropriate documentation to satisfy I- 9 requirements, employer must take action or risk determination by ICE that employer had constructive knowledge.

42 Unresolved Questions: ICE s Safe Harbor Rule Does employer have obligation to investigate when employee resolves discrepancy by producing new SSN that is different from prior number? What does employer do when employee, who is the subject of recurring no-match letters, procures a different number year after year in response to employer s request to rectify discrepancy? How does employer re-verify an employee who did not use a suspect SSN when he or she initially completed Form I-9?

43 Immigration Crimes In April 2009, DHS issued new guidelines and regulations that are increasing attention and resources on prosecuting employers who violate our nation s immigration laws. ICE s highest priority is on the criminal prosecution of employers who knowingly hire undocumented workers, abuse and exploit their workers, engage in the smuggling or trafficking of their alien workforce, or facilitate document or benefit fraud. The agency s efforts also include identifying, investigating, and penalizing employers who engage in visa or labor certification fraud. In addition to enforcement efforts, however, ICE is providing compliance tools to assist employers in determining the eligibility of their employees to work in the U.S.

44 Immigration Crimes John Morton, Director of the U.S. Immigration and Customs Enforcement (ICE) reported results for Morton said that in 2010, ICE arrested 195 employers for criminal worksite immigration violations. Under the April 30, 2009 ICE Enforcement Memo, targeted employers are defined as owners, corporate managers, supervisors, and someone involved in the hiring or management of employees. This includes owners, CEOs, supervisors, managers, and other occupational titles.

45 Harboring Undocumented Aliens Recent raids and enforcements actions targeting employers deemed to be harboring or smuggling undocumented aliens Harboring may include providing transportation, shelter, or assistance in obtaining employment if employer knows or should know the worker is undocumented

46 Penalties for Knowingly Hiring or Continuing to Employ Unauthorized Aliens First offense: Civil fine of $275 to $2,200 for each worker Second offense: Civil fine of $2,200 to $5,500 for each worker Third or more offense: $3,300 to $11,000 for each worker Pattern and practice: fines of up to $3,000 for each worker and/or imprisonment of up to 6 months

47 Penalties for Harboring of Undocumented Aliens Forfeiture of business assets Imprisonment of up to 10 years Fines of up to $250,000

48 New Difficulties In Processing Visas Within the first 100 days of the Trump Presidency we have seen a few things that may impact processing of visas. Leaked Executive Order discussing numerous work visas USCIS memos frustrating visa processing Secretary or State Cables indicating more vetting at US Consulates and border crossings. Proposed Legislation

49 Why Legal Immigration is Good for America The H-1B visa is for professional workers, those that have at least a bachelor s degree. The Bureau of Labor Statistics states the unemployment rate for professional occupations as of Feb. 2017, is only 1.9%. There is a large and growing scarcity of STEM workers By 2018 the US will face a shortfall of more than 223,000 workers in STEM fields. Census Bureau data shows that only about 19% of US born students earning a bachelor s degree complete a major in a core STEM field, roughly half that found in many developed nations The Government Accountability Office (GAO) found that between 2002 and 2012 academic years, foreign students who graduated with majors in STEM fields, were ten times more US citizens. Foreign-born H-1B works benefit the US economy and create American jobs: For every H-1B worker, 1.83 jobs for native-born Americans are created. The H-1B visas awarded between will create more than 700,000 jobs for U.S.-born workers by H-1B visa holders are particularly valuable to small businesses. Companies with less than 5,000 employees were found to hire an additional 7.5 workers for each H-1B worker hired. Employers use foreign-born workers to fill more technical jobs, which allows U.S.-born employees to assume managerial and leadership positions. Reducing or frustrating high-skilled legal immigration workers will result in the loss of American jobs and affect US companies. Increasing highly skilled immigration will improve economic growth by more than $100 billion over the next decade according to the Congressional Budget Office (CBO).

50 New Rules That Make Immigration Easier

51 Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High- Skilled Nonimmigrant Workers of January 18, 2017 Grace periods 10 & 60 days Counting against the H-1B Cap H-1B portability H-1B cap exemptions Protections for Whistleblowers H-1B extensions pending green card Green card portability Employment authorization in compelling circumstances Adjudication of EADs

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53 HOUSEKEEPING Certificates delivered by no later than 6/31/17 Be watching using YOUR unique URL for login Stay on the webinar, online for the full 60 minutes. The use of this seal confirms that this activity has met HR Certification Institute's (HRCI ) criteria for recertification credit pre-approval. Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at Recertification Credit Hours Awarded: 1 Specified Credit Hours: HR (General) recertification credit hours toward aphr, PHR, PHRca, SPHR, GPHR, PHRi, SPHRi recertification through HR Certification Institute's (HRCI ). For more information about certification or recertification, please visit the HR Certification Institute website at

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