Immigration Compliance

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1 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Immigration Compliance Christopher L. Thomas (Denver) (303) ;

2 Homeland Security Immigration & Naturalization Service Dissolved Creation of Department of Homeland Security (03/01/2003) Customs & Border Protection Citizenship & Immigration Services Immigration & Customs Enforcement 2

3 Current Enforcement Trend Change in the Equation: - ICE will focus its resources... on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration. - ICE tripling number of officers and quintupling number of enforcement actions in

4 Compliance Basics What does the Law Require? 1. Properly/Timely Completed I-9 2. Good Faith Belief New Hire is Eligible to Work 3. Good Faith Belief Current Employee Continues to be Eligible to Work 4. Properly Run E-Verify Query (where required) 4

Proper I-9 Substantive v. Technical Errors - Substantive: (e.g., failure to check box, sign, timely date in Sec. 1, & failure to sign, timely date in Sec. 2, etc.) - Technical: (e.g., P.O.

5 Proper I-9 Substantive v. Technical Errors - Substantive: (e.g., failure to check box, sign, timely date in Sec. 1, & failure to sign, timely date in Sec. 2, etc.) - Technical: (e.g., P.O. Box for address, switch first & last names, failure to insert name at top of page two, etc.) Why Correct I-9 Forms Now? - We view the good faith of an employer differently when corrections are made post-notice of inspection. ICE is tougher on those issues.

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8 Good Faith at Hiring Not Required To Be Document Expert - Must accept documents that reasonably appear to be genuine AND to relate to the person presenting them. o But, what is reasonable? 8

9 Good Faith at Hiring Some Fraud Indicators: - Photo doesn t match employee - Card printed on DOJ/INS cardstock (After 2004) - Agency name misspelled - Varying font sizes & types 9

10 Continuing Good Faith Ongoing Responsibility to Monitor Workforce Actual/Constructive Knowledge - Improper/Missing Form I-9 - Confession - DHS Audit - Gossip & rumors - Mismatch letter from Social Security 10

11 Immigration Compliance Civil Penalties - Fines Knowing Employment of Illegal Aliens ($539 to $4,313 per defective form) Paperwork Violations ($216 to $2,156 per defective form) - Debarment or Suspension (Federal Contracts) 11

Immigration Compliance Remember Criminal Focus - Pattern and Practice in hiring (misdemeanor) - Knowingly hiring 10 unauthorized workers (or more) in 12 month time

12 Immigration Compliance Remember Criminal Focus - Pattern and Practice in hiring (misdemeanor) - Knowingly hiring 10 unauthorized workers (or more) in 12 month time period - Harboring or Encouraging or Inducing (An ICE Favorite) Forfeiture of Assets - Making false attestation on Form I-9 (Perjury and Visa Fraud) 12

13 Immigration Compliance Case Study (IFCO Pallet Company) -Nationwide raid -Resulted in arrests of nearly 1,200 employees -$20.7 Million in forfeitures and civil fines -16 Corporate Officers prosecuted 13

Immigration Compliance Asplundh Tree Experts Settled for $95 million (forfeitures and civil fines) Allegation: Management acted with willful blindness in hiring undocumented workers Sr.

14 Immigration Compliance Asplundh Tree Experts Settled for $95 million (forfeitures and civil fines) Allegation: Management acted with willful blindness in hiring undocumented workers Sr. Management decentralized hiring, turning a blind eye while lower level supervisors hired undocumented workers Acting ICE Director: Today s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. (ICE Press Release, 09/28/2017) 14

15 Document Abuse Discrimination Still Prohibited Common Document Abuse Situations: - Request specific document(s) - Pre-screen new hires - Re-verify U.S. citizens or permanent residents - Reject acceptable documentation 15

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17 E-Verify Voluntary (Unless State Law or Executive Order for Federal Contracts Applies) What Does E-Verify Accomplish? - Rebuttable presumption of legal workforce - No safe harbor from workplace enforcement WARNING: E-Verify has become primary tool for ICE to target employers 17

18 Immigration Compliance Best Practices (Outlined by ICE): Use E-Verify for all new hires. Use SSNVS for wage reporting. Establish a written I-9 Compliance Policy. Establish compliance and training programs. Allow only trained personnel to complete I-9s. Perform annual internal I-9 audits. 18

Immigration Compliance Best Practices (Continued): Ensure contractors comply with law. Establish a protocol for responding to government agencies (e.g., SSA No-Match Letters).

19 Immigration Compliance Best Practices (Continued): Ensure contractors comply with law. Establish a protocol for responding to government agencies (e.g., SSA No-Match Letters). Establish tip line and response mechanisms. Implement policies to protect against document abuse. Maintain clear copies of verification documents. 19

20 Conclusion Questions 20

Immigration Law Compliance Understanding and Minimizing Liability Risks

Immigration Law Compliance Understanding and Minimizing Liability Risks Presented by: Bernhard Mueller & Sarah Asta Immigration Law Compliance Enforcement Primary government agencies involved: U.S. Immigration