Kevin Lashus FisherBroyles, LLP Austin, TX. Copyright FisherBroyles, LLP

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1 Kevin Lashus FisherBroyles, LLP Austin, TX Copyright FisherBroyles, LLP

2 Nov. 14, 2016 U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification By Jan. 22, 2017, employers must use only the new version, dated 11/14/2016. Until then, they can continue to use the version dated 03/08/2013 or the new version. The revised form can be completed on a computer. And, if so, it includes drop-down lists and calendars for filling in dates, on-screen instructions for each field, and an option to clear the form and start over. 2

3 Other changes include: The addition of prompts to ensure information is entered correctly. The ability to enter multiple preparers and translators. A dedicated area for including additional information rather than having to add it in the margins. A supplemental page for the preparer/translator. 3

4 Pew Research Center: An estimated 11.5M unauthorized workers made up an estimated 5.2% of the active workforce in the United States. About two-thirds (66%) of the unauthorized refuges population in 2014 had been in the U.S. at least ten years making most eligible for Cancellation of Removal. DHS OIG: HSI s inconsistent implementation of the administrative inspection process...may have hindered its mission (Feb. 2014). 4

5 American Action Forum (AAF) research found it would take at least 20 years and cost the federal government $400 to $600 billion to remove all undocumented refugees currently living in the United States and to prevent all future unlawful entry. 5

6 To remove all undocumented refugees in only two years, the U.S. government would have to monumentally expand each of those stages of the removal process. Based on FY 2013, levels it would require: Federal immigration apprehension personnel to increase from 4,844 positions to 90,582 positions; The number of immigration detention beds to increase from 34,000 to 348,831; The number of immigration courts to increase from 58 to 1,316; The number of federal attorneys legally processing undocumented immigrants to increase from 1,430 to 32,445; and A minimum of 17,296 chartered flights and 30,701 chartered bus trips each year. 6

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8 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.) 8

9 (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.) 9

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13 How to handle employees eligible under Executive Action: o Verifying DACA employees: Updating/re-verifying I-9s: Complete new I-9 if name, date of birth or SSN change. Update existing I-9 only if information in Section 1 does not change and employee provides new EAD. E-Verify: If new I-9 completed, USCIS advises to run through E-Verify. o Time to review internal policies. 13

14 Government audits encompass more than your I-9s make sure documents are consistent with payroll and related records. Be thorough upon initial completion it is easier to fix errors that are caught early! Properly train your I-9 preparers and create a system for consistent records auditing. Consider potential related actions. 14

15 Free service with confirms work authorization data to government databases. Does not replace the Form I-9. Mostly likely to become national but already required in various jurisdictions. Advantages for foreign students. Provides leverage for ICE negotiations. Provides opportunity for data collection by the Office of Special Counsel and other agencies. 15

16 560, , , , , , , , , , , ,000 80,000 40, ,064 1,704 2,144 3,478 5,899 11,474 24,480 87, , , , , , ,548 FY 01 FY 02 FY 03 FY 04 FY 05 FY 06 FY 07 FY 08 FY 09 FY 10 FY11 FY12 FY13 FY14 Cumulative Employers Enrolled More than 28 million cases run in FY As of November 29, 2014, more than 5.3 cases run in FY15. Employers in every industry, state and U.S. territory. 16 December 2014

17 CA OR ID UT AZ WY CO NE OK TX MN IA W I MO IL AR MS LA MI IN K TN AL OH PA VA SC GA NC FL CT NJ M D Enacted legislation requiring mandatory use of E-Verify that may include most employers, various public entities / contractors 17 December 2014

18 Prohibited conduct under the INA s Anti-Discrimination Provision at 8 USC 1324b: o Citizenship status discrimination; o National origin discrimination; o Document abuse; o Retaliation. 18

19 Complaint driven: o Injured parties file discrimination charges directly with OSC's Washington, D.C. office within 180 days of the alleged act of discrimination. Independent investigations: o Based on information developed during complaint investigation, leads from other agencies or general public. 19

20 $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). $170,000 civil penalties and $100,000 set aside for potential back pay awards for all current or former employees whose work authorization was improperly reverified by employee. 20

21 Implementation of Executive Orders. Battle between compliance and reform advocates. Increases in government filing fees. Growing role of ICE and OSC. Discreet information gathering. Resolutions to help business through increased access to foreign talent. 21