Immigration Compliance
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- Shavonne Griffith
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1 Immigration Compliance Davis C. Bae Regional Managing Partner, Fisher Phillips / (206) Robert Gibbs Partner, Gibbs Houston Pauw (206) ICE Growth and Directives Hire an additional 15,000 ICE officers Attempt to quadruple enforcement activities Aggressively pursue fines and arrests Focus on Sanctuary Cities March 15-16, 2018 Page 1 of 18
2 The Immigration Compliance Problem Total population of the United States: 321 million. Estimated undocumented: million. An estimated 6% of our workforce is undocumented. Retail, construction, agriculture and hospitality tend to have riskier employee bases State sanctions for discrimination and immigration enforcement violations 3 Complexities of Status Automatic vs. non-automatic extensions of status TPS NIV extensions H-1B extensions AOS extensions DACA tion/i-9%20central/factsheets/fact-sheet- AutoExtendEAD.pdf March 15-16, 2018 Page 2 of 18
3 Monetary Penalties I-9 substantive/uncorrected technical violations (e.g., missing I-9) range from $216 to $2,156 per violation. Knowing 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) Changes to the I-9 Form New version (11/14/2016) effective 1/22/2017. All prior versions no longer valid after 1/21/2017.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 has been updated. March 15-16, 2018 Page 3 of 18
4 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. Smart, Dumb and Electronic I-9s USCIS is now also offering a smart version of the Form I-9 which offers basic error-checking capabilities The USCIS continues to offer an unfillable (or flat ) version of the Form I-9 as well which must be printed and completed by hand. The Smart Form I-9 is not an Electronic I-9. Be prepared to answer questions regarding the Preparer/Translator section of the new Form I-9 if using the smart version or electronic I-9. March 15-16, 2018 Page 4 of 18
5 Properly Completed Section 1 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 failed to check or fully complete Citizenship Status Box - Correctable. Employee did not sign/date Correctable w/ current date. March 15-16, 2018 Page 5 of 18
6 Properly Completed P/T Section Properly Completed Section 2 March 15-16, 2018 Page 6 of 18
7 List of Acceptable Documents List A Documents that Establish both Identity and 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 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 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 March 15-16, 2018 Page 7 of 18
8 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. Document Acceptance Standards Reasonable? March 15-16, 2018 Page 8 of 18
9 Outdated LPR/Green Card No longer resembles person, not acceptable Example: Unacceptable List B Document March 15-16, 2018 Page 9 of 18
10 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. 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) March 15-16, 2018 Page 10 of 18
11 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. Section 3- Reverification and Rehires March 15-16, 2018 Page 11 of 18
12 Section 3 - Reverification If employee s authorization to work in U.S. will expire re-verify. If rehire employee within 3 years of original hire date may re-verify use current version of Form I-9. If employment authorization document originally presented is still valid, no need to review document. E-Verify Overview Electronically compares information from Section 1 of Form I-9 with records contained in the DHS and SSA databases Cannot use system to pre-screen applicants Verification query must be performed within 3 business days of start date March 15-16, 2018 Page 12 of 18
13 E-Verify Rules New Hires/Rehires Only (unless Federal Contract requirement for existing employees) Must allow employees to contest a mismatch (Tentative Nonconfirmation) Makes Social Security Numbers in I-9 form Mandatory Cannot use to discriminate USCIS Compliance/Monitoring Posters Photo Matching 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 March 15-16, 2018 Page 13 of 18
14 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. Worksite Enforcement Process 28 March 15-16, 2018 Page 14 of 18
15 How Fines Are Assessed Substantive and Technical Errors Continuing to Employ Enhancement Matrix / /civil-monetary-penalties-inflationadjustment-for-2017 Substantive/Uncorrected Violations Substantive Verification Violations 1st Offense $220 $2,191 2nd Offense $220 $2,191 3rd Offense + $220 $2,191 0% 9% $220 $1,096 $2,191 10% 19% $548 $1,315 $2,191 20% 29% $876 $1,534 $2,191 30% 39% $1,205 $1,753 $2,191 40% 49% $1,534 $1,972 $2,191 50% or more $1,862 $2,191 $2,191 March 15-16, 2018 Page 15 of 18
16 Knowing Hire/Continuing to Employ Knowing Hire and Continuing to Employ Violations First Tier $548 $4, 384 Second Tier $4,384 $10,957 0% 9% $548 $4,384 $6,575 10% 19% $1,140 $6,322 $8,547 20% 29% $1,754 $7,232 $11,177 30% 39% $2,411 $8,174 $13,807 40% 49% $3,069 $9,094 $16,568 50% or more $3,726 $10,026 $19,242 Third Tier $6,575 $21,916 Enhancement Matrix Enhancement Matrix Factor Aggravating Mitigating Neutral Business size + 5% 5% +/ 0% Good faith + 5% 5% +/ 0% Seriousness + 5% 5% +/ 0% Unauthorized Aliens + 5% 5% +/ 0% History + 5% 5% +/ 0% Cumulative Adjustment + 25% 25% +/ 0% March 15-16, 2018 Page 16 of 18
17 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. 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. March 15-16, 2018 Page 17 of 18
18 FINAL QUESTIONS March 15-16, 2018 Page 18 of 18
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