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2 A Comprehensive Immigration Review for In-House Counsel March 19, 2013 Presented By: Michael Massiatte, Chief Employment & Compliance Counsel, Denbury Michael Neifach, Partner, Jackson Lewis LLP Amy L. Peck, Partner, Jackson Lewis LLP 2

3 Prospects for Immigration Reform Congress and the Administration are looking to make fundamental changes to U.S. immigration laws this year. Administration released an outline of proposed legislation Bipartisan group of 8 Senators released a framework Bipartisan group in House working on proposed legislation and Judiciary Hearings 3

4 Prospects for Reform (Continued) Common Elements Enhanced employee verification processes and penalties for hiring unlawful workers Improvements to our legal immigration system Legal status for individuals already in the United States without proper documentation, potentially including a conditional pathway to citizenship Additional efforts to secure the border 4

5 Comprehensive Reform Immediate Implications Elements already being implemented: Deferred Action for Childhood Arrivals (DACA) Mandatory E-Verify requirements for Federal Contractors and in 23 States Enhanced enforcement of immigration-related anti-discrimination provisions by US DOJ/OSC 5

6 DACA Population Estimates - 1 to 1.7 million currently undocumented individuals 35 and under in US since childhood Many eligible individuals working and may have provided false information during the hiring process Update and clarify policies and procedures False information during hire Updating/reverifying I9s and E-Verify 6

7 E-Verify What is it? Users submit information provided on the Form I-9 System queries SSA and DHS databases Initial verification will return one of three results within seconds: Employment Authorized (The employee is authorized to work) SSA Tentative Nonconfirmation (There is an information mismatch with SSA) DHS Verification in Process (DHS will usually respond within 24 hours with either Employment Authorized or Tentative Nonconfirmation) 7

8 E-Verify Case Resolution Employment Authorized - Record verification number on the Form I-9 or print confirmation page and attach to Form I-9 Tentative Nonconfirmation - Inform the employee and print and review the TNC notice Employee may choose to contest or not contest notice Final Nonconfirmation - the employer may terminate the employee 8

9 Mandatory E-Verify Federal Contractors - effective date 9/8/2009 Existing employees currently assigned to a federal contract and all new hires Option of verifying entire workforce State E-Verify Laws Mandatory E-Verify or State ID requirements for nearly all companies in 9 states Mandatory E-Verify for public contractors in 8 more 9

10 E-Verify - Federal Contractors/Exempt Exempt Contracts Contracts that include only commercially available off-theshelf (COTS) items (or minor modifications to a COTS item) and related services Contracts of less than the simplified acquisition threshold ($100,000) Contracts less than 120 days Contracts where all work is performed outside the United States 10

11 E-Verify Federal Contractors Enrollment Requirements: If already E-Verify participant: Update company profile in system E-Verify users at your company will need to take a federal contractor tutorial that explains the new policies and features that are unique to federal contractors. If not current E-Verify user: Contractor and covered subcontractors must enroll in E-Verify within 30 calendar days of award of contract containing the FAR E-Verify clause 90 days from the date employer enrolls in E-Verify to begin running all new hires through E-Verify and running current employees who will be working on the contract containing 11 the FAR E-Verify clause

12 E-Verify Federal Contracts/Non-compliance Possible Penalties Contract Termination Termination of MOU and Suspension from E-Verify Increased Monitoring by USCIS, OSC, ICE 12

13 State Efforts All or most Employers Public Employers and/or Contractors Public Employers Only Contractors Only Employers through local or municipal requirement only Requirement Rescinded or Expired Copyright LawLogixTM 13

14 Forms I-9 Enhanced enforcement and audits 2012 ICE audited records > 3,000 employers/$13 million in civil fines Debarment from Federal Contracts for Knowing Hire violations Criminal arrests 14

15 I-9 Strategy and Tactics Nationalizing I-9 Audits ICE Employment Compliance Inspection Center in Crystal City, Virginia Coordinated waves of I-9 NOI USCIS Compliance Tracking and Management System 15

16 Common I-9 Violations Substantive Violations Failure to complete Form I-9 for each new hire Failure to produce for each new hire in audit Lack of employee signature in Section 1 of Form I-9 Lack of employee status attestation in Section 1 Multiple employee status checks in Section 1 Lack of employer attestation and signature in Section 2 Improper document description in Section 2 Failure to complete Section 2 certification and enter date of hire within three (3) days of hire 16

17 I-9 Civil Fines Knowingly Hire/Continuing to Employ First Offense -$375 to $3,200 per violation Second Offense - $3,200 to $6,500 per violation More than 2 offenses - $4,300 to $16,000 per violation Substantive/Uncorrected Technical Paperwork Violations $110 to $1,100 per violation depending upon number of offenses and level of non-compliance 17

18 New Form I-9 USCIS published new I-9 3/8/2013 The key revisions include: Adding data fields, including the employee s foreign passport information (if applicable) and telephone numbers and addresses. (The telephone numbers and addresses are optional.) Improving the form s instructions, including more definitions Revising the layout of the form, expanding the form from one to two pages (not including the form instructions and the List of Acceptable Documents) New Form I-9 immediately replaces all prior versions; HOWEVER, 60-day implementation period 18

19 Revised Form I-9 what has changed?

20 Section 1 (employee information) Section 1. Employee Information and Attestation (Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.) 20

21 Section 1 (attestation)

22 Section 1 (preparer/translator) 22

23 Polling Question Section 1 of Form I-9 must be completed by the employee... Before the first day of work On or before the first day of work Within three days after the first day of work Within three BUSINESS days after the first day of work Within the four-day window from the first day of work to the third day after 23

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25 (Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee s first day of employment. You must physically examine one document from List A OR examine a combination of one document from List B and one document from List C as listed on the Lists of Acceptable Documents on the next page of this form. For each document you review, record the following information: document title, issuing authority, document number, and expiration date, if any.) 25

26 Discrimination and Document Abuse Prohibited Conduct Under the INA s Anti-Discrimination Provision at 8 USC 1324b Citizenship Status Discrimination National Origin Discrimination Document Abuse Retaliation 26

27 Office of Special Counsel (OSC) Complaint driven Injured parties file discrimination charges directly with OSC's Washington, D.C. office within 180 days of the alleged act of discrimination Independent investigations Based on information developed during complaint investigation, leads from other agencies or general public 27

28 OSC case examples $257,000 civil penalties in a settlement with an employer based on a pattern and practice of requiring naturalized U.S. citizen workers and non-u.s. citizen workers to produce more documents than required by law for Form I-9 purposes (requiring List A documents). $18,550 back pay and $3,200 civil penalties to non-u.s. citizen job applicant based on a policy of not hiring any immigrants, leading the HR personnel to reject all applicants who sounded or appeared foreign. 28

29 Questions? 29

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