Скачать презентацию Increased Immigration Worksite Enforcement Strategies and Solutions Скачать презентацию Increased Immigration Worksite Enforcement Strategies and Solutions

d2cc5a566ca1ff96daddf959295bf680.ppt

  • Количество слайдов: 42

Increased Immigration & Worksite Enforcement: Strategies and Solutions to Weather the Perfect Storm Elise Increased Immigration & Worksite Enforcement: Strategies and Solutions to Weather the Perfect Storm Elise A. Fialkowski Kate Kalmykov Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 John F. Kennedy Blvd. , 17 th Floor 317 Madison Ave. , Suite 1518 New York, NY 10017 212. 796. 8840 Philadelphia, PA 19103 215. 825. 8600 www. klaskolaw. com

Elise A. Fialkowski, Esq. Elise Fialkowski is a Partner at Klasko, Rulon, Stock & Elise A. Fialkowski, Esq. Elise Fialkowski is a Partner at Klasko, Rulon, Stock & Seltzer, LLP and she has been providing immigration assistance and solutions to leading universities, research institutions, multinational corporations and individuals for over 15 years. Elise leads the firm’s worksite compliance group. Elise has particular expertise in advising employers with regard to worksite compliance with the Immigration Reform and Control Act including I-9 Employment Eligibility verification, E-Verify and worksite enforcement issues. An active member of the American Immigration Lawyers Association, Elise has served on AILA’s E-Verify Liaison Committee and she is on the Executive Committee of its Philadelphia Chapter as well as the Philadelphia USCIS Liaison Committee. A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, (B. A. 1987), Elise received her law degree from the Villanova University School of Law (J. D. , magna cum laude, 1991). Klasko, Rulon, Stock & Seltzer, LLP

Kate Kalmykov, Esq. Kate Kalmykov, an Associate in the Firm's New York City office, Kate Kalmykov, Esq. Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration. Kate regularly works with corporate clients, hospitals and universities on providing creative immigration solutions to visa and work authorization needs of foreign nationals including skilled workers, persons of extraordinary ability, managers and executives, professionals, treaty investors and traders, as well as corporate trainees. Kate received her J. D. from the American University and is admitted to practice in New York and New Jersey. A member of the American Immigration Lawyers Association, Kate chairs the New York CLE Committee and serves as Secretary of New York District Office Liaison Committee. Klasko, Rulon, Stock & Seltzer, LLP

Overview Increased I-9 Enforcement and Penalties Criminal Enforcement and ICE E-Verify and Data Mining Overview Increased I-9 Enforcement and Penalties Criminal Enforcement and ICE E-Verify and Data Mining Information Sharing Agreements-USCIS, ICE and OSC Discrimination Claims Fraud Detection and National Security (FDNS) Investigations Practical Strategies and Best Practices to Protect your Company NOW Klasko, Rulon, Stock & Seltzer, LLP

Increased I-9 Enforcement Background–Form I-9 q Immigration Reform and Control Act (“IRCA”) requires employers Increased I-9 Enforcement Background–Form I-9 q Immigration Reform and Control Act (“IRCA”) requires employers to verify identity and employment eligibility of employees hired after 11/6/86 q Section 1 -Employee Information and Verification- must be completed by the employee at the “time of hire” – 1 st day of work Personal information Attestation as to status Klasko, Rulon, Stock & Seltzer, LLP

Increased I-9 Enforcement Background–Form I-9, cont’d Section 2 -Employer Review and Verification- must be Increased I-9 Enforcement Background–Form I-9, cont’d Section 2 -Employer Review and Verification- must be completed by the employer within “ 3 business days of date employment begins” q Review Original documents that show identity and employment eligibility q List of Acceptable Documents – one document from List A or one document from List B and one from List C Do NOT accept more than is required or request specific documents Record title, issuing date, authority, doc. no. , expiration Documents must appear to (1) be reasonably genuine and (2) relate to the individual presenting them –Attestation Klasko, Rulon, Stock & Seltzer, LLP

Increased I-9 Enforcement Background–Form I-9, cont’d q Section 3 – Updating and Verification (or Increased I-9 Enforcement Background–Form I-9, cont’d q Section 3 – Updating and Verification (or new Form I-9) q For time-limited work authorization q Reverify on or before expiration of work authorization – documentation of continued work authorization q Can NOT ask for a specific document q Establish “tickler” system – at least 120 days notice q Do NOT reverify an expired US passport or Permanent Resident card Klasko, Rulon, Stock & Seltzer, LLP

Increased I-9 Enforcement New ICE Worksite Compliance Strategy q q q Raid v. audit/investigation Increased I-9 Enforcement New ICE Worksite Compliance Strategy q q q Raid v. audit/investigation - NOI Focus on Employers Pledge to continue active criminal prosecution of employers Pledge to issue detailed investigation protocols Support E-Verify/system improvements Klasko, Rulon, Stock & Seltzer, LLP

Increased I-9 Enforcement (cont’d) ICE Implements Strategy – Since 1/2009 More than 3200 employers Increased I-9 Enforcement (cont’d) ICE Implements Strategy – Since 1/2009 More than 3200 employers audited q Over $50 million fines q Average employer fine $110, 000 q 180 business owners, managers, supervisors criminally charged q 225 companies debarred from federal contracts q Klasko, Rulon, Stock & Seltzer, LLP

Increased I-9 Enforcement (cont’d) Calculation of penalties-12/09 Fine Guidance Issued q Penalty knowing hire/employ: Increased I-9 Enforcement (cont’d) Calculation of penalties-12/09 Fine Guidance Issued q Penalty knowing hire/employ: $375 -$16, 000 per employee q Penalty substantive/technical violations: $110 to $1, 100 per violation q “Violation percentage” and base fine amount q Enhancement/Mitigation Factors Example q Abercrombie > $1 million fine 09/10 Klasko, Rulon, Stock & Seltzer, LLP

Increased OSC Enforcement Non-Discrimination in I-9 Process OSC-Office of Special Counsel for Immigration Related Increased OSC Enforcement Non-Discrimination in I-9 Process OSC-Office of Special Counsel for Immigration Related Unfair Employment Practices created w/IRCA Enforces citizenship/immigration status discrimination, national origin discrimination, document abuse and retaliation Civil penalties: Citizenship/national origin discrimination $374 -16, 000 q Document abuse -$110 -$1, 100 q Back-pay & injunctive relief q Klasko, Rulon, Stock & Seltzer, LLP

Increased OSC Enforcement Non-Discrimination in I-9 Process Recent increased enforcement (cont’d) q Catholic Healthcare Increased OSC Enforcement Non-Discrimination in I-9 Process Recent increased enforcement (cont’d) q Catholic Healthcare West – 11/10 largest ever civil penalty >$257, 000 q John Jay College- OSC sought $1100 per employee (settled 2010) q Hoover Vacuum 2010 settlement-$10, 200 (expired green card) q Garland Sales, Inc. -7/8/10 suit alleges different and greater reqs-non -US Citizens/retaliation q Maricopa Community College-8/30/10 suit alleges college imposed greater requirements on at least 247 non-US citizens q Other actions – broad range businesses-landscaping, pool, beauty Klasko, Rulon, Stock & Seltzer, LLP

Avoiding Discrimination Claims Immigration law (IRCA) prohibits discrimination in hiring and discharging based on Avoiding Discrimination Claims Immigration law (IRCA) prohibits discrimination in hiring and discharging based on national origin or citizenship status Do Not use the I-9 process to pre-screen for hiring Only I-9 after written offer or on first day DO show the full list of acceptable documents Do NOT request specific documents Do NOT require more/different documentation for noncitizens/those appearing foreign Do NOT require more than 1 List A or List B &C combination Klasko, Rulon, Stock & Seltzer, LLP

Simple One Page Form? Klasko, Rulon, Stock & Seltzer, LLP Simple One Page Form? Klasko, Rulon, Stock & Seltzer, LLP

Audited I-9 Klasko, Rulon, Stock & Seltzer, LLP Audited I-9 Klasko, Rulon, Stock & Seltzer, LLP

ICE – I-9 Best Practices Written I-9 policy Internal compliance & training program Require ICE – I-9 Best Practices Written I-9 policy Internal compliance & training program Require I-9 process only by those trained Secondary review for each I-9 Annual I-9 audits by external auditing firm or trained person not involved in I-9 process Protocol to respond to tips/information/constructive knowledge Polices/procedures safeguard against discrimination incl. training Maintain copies of documents (E-Verify/SSNVS) Klasko, Rulon, Stock & Seltzer, LLP

Electronic I-9 Program Many providers Abercrombie & Fitch Do NOT have to use E-Verify Electronic I-9 Program Many providers Abercrombie & Fitch Do NOT have to use E-Verify but many provide link should desire USCIS reports they are developing their own Electronic I-9 Klasko, Rulon, Stock & Seltzer, LLP

Electronic I-9 Program Benefits vary depending upon provider and (cont’d) functionality of program Time-saving: Electronic I-9 Program Benefits vary depending upon provider and (cont’d) functionality of program Time-saving: data does not have to be reentered for E-Verify q Alerts as to missing fields, inconsistent information and dates q Tickler system for reverification q Links to HR system q Tools to easily purge I-9 s consistent with retention requirements q Paperless “green option” — electronic signature, electronic retention and scanning q Klasko, Rulon, Stock & Seltzer, LLP

Electronic I-9 Program (cont’d) q Help features/pop-ups to assist with process/explain documents q Reminder Electronic I-9 Program (cont’d) q Help features/pop-ups to assist with process/explain documents q Reminder emails to designated HR staff q Customization-configured to company’s business processes q Immediate updates with changes in Forms/policy q Support for program/E-Verify Klasko, Rulon, Stock & Seltzer, LLP

E-Verify Compliance Issues The Basics q Electronic employment eligibility verification system q Checks I-9 E-Verify Compliance Issues The Basics q Electronic employment eligibility verification system q Checks I-9 information against SSA and DHS databases q Voluntary unless required by state law or federal contractor rule E-Verify required by State law q All employers: AZ, MS, UT, SC* q Contractors: CO, GA, MN, MS, MO, NB, OK, RI, SC, UT q Public employers: AZ, GA, MN, MS, MO, NB, NC, OK, RI, SC, UT, VA Klasko, Rulon, Stock & Seltzer, LLP

E-Verify Compliance-Is Enrollment Required? Federal Contractor Rule- “contractors” and “subcontractors” required to enroll (cont’d) E-Verify Compliance-Is Enrollment Required? Federal Contractor Rule- “contractors” and “subcontractors” required to enroll (cont’d) q Contractors Contract must be issued after 9/8/09 or amended IDIQ contract Must be Acquisition Contract subject to FAR w/performance longer than 120 days and value above $100, 000 Contract must include “E-Verify clause” q Subcontractors Subcontract must flow from prime contract with E-Verify clause Only for subcontracts for Services or Construction w/value over $3, 000 Klasko, Rulon, Stock & Seltzer, LLP

E-Verify Compliance Federal Contractor Rule General rule q Requires E-Verify query of: All new E-Verify Compliance Federal Contractor Rule General rule q Requires E-Verify query of: All new hires, and All existing employees assigned to the contract, or 180 day option for all existing employees Exemptions university q May opt to only verify: New hires assigned to contract, and Existing employees assigned to contract Klasko, Rulon, Stock & Seltzer, LLP (cont’d)

E-Verify Compliance Main Employer Responsibilities – MOU (cont’d) q Post notices q Agree to E-Verify Compliance Main Employer Responsibilities – MOU (cont’d) q Post notices q Agree to visits by ICE and/or designees q Attach results to Form I-9 and retain for same time as form q Rebuttable presumption of compliance if confirmation is obtained q Notify DHS if continues to employ following non-confirmation (civil penalties $550 -$1, 100 for failure to notify) q If continued employment after Final Non-Confirmation a rebuttable presumption of violation of INA § 274 A(a)(1)(A) is created q Can only leave with 30 days notice Klasko, Rulon, Stock & Seltzer, LLP

Klasko, Rulon, Stock & Seltzer, LLP Klasko, Rulon, Stock & Seltzer, LLP

E-Verify Compliance General Guidelines Not a substitute for I-9 compliance Does not provide protection E-Verify Compliance General Guidelines Not a substitute for I-9 compliance Does not provide protection against worksite enforcement Cannot be used to pre-screen Can only be used to verify eligibility of newly hired employees unless federal contractor Queries must be conducted within 3 days after hire List B documents must have a photo Must copy green card, EAD and passport Klasko, Rulon, Stock & Seltzer, LLP

Verification of Eligibility What you need: q Information from Section 1 and 2 from Verification of Eligibility What you need: q Information from Section 1 and 2 from the Form I-9 q Identification document provided from List “B” must contain a photograph Results q Confirmation q Tentative Non-Confirmation q Final Non-Confirmation Klasko, Rulon, Stock & Seltzer, LLP

Advantages of Using E-Verify Rebuttable presumption of compliance if confirmation is obtained q Swift Advantages of Using E-Verify Rebuttable presumption of compliance if confirmation is obtained q Swift Meatpacking case – no corporate fines for 1, 000+ unauthorized workers Allows employer to query system re validity of documentation Saves time/training by identifying unauthorized workers prior to no-match 17 month STEM extension Klasko, Rulon, Stock & Seltzer, LLP

E-Verify Compliance Disadvantages of Using E-Verify (cont’d) Problems with underlying databases Limited to new E-Verify Compliance Disadvantages of Using E-Verify (cont’d) Problems with underlying databases Limited to new hires (except federal contractors) No formal appeals process for non-confirmations Additional HR and company time for process in addition to I-9 Access to I-9 s and related records Klasko, Rulon, Stock & Seltzer, LLP

E-Verify Compliance Data Mining & Data Sharing (cont’d) Memorandum of Agreement- MOA q 12/08 E-Verify Compliance Data Mining & Data Sharing (cont’d) Memorandum of Agreement- MOA q 12/08 USCIS MOA with ICE q 3/10 USCIS MOA with Office of Special Counsel (OSC) Data mining/audits q Compliance Tracking & Monitoring System, staff q Examples: completion w/i time-line, terminate TNC, failure notify FNC, selective use, fraudulent use, etc. q Referral to ICE and OSC Klasko, Rulon, Stock & Seltzer, LLP

Practical I-9 and E-Verify Compliance Considerations Audit of older I-9 s I-9 issues with Practical I-9 and E-Verify Compliance Considerations Audit of older I-9 s I-9 issues with existing employees under Federal Contractor Rule / choosing among the options Tracking employees who are on a contract Who conducts queries/handles non-confirmations I-9 and E-Verify policies Training plan—including non-discrimination training Electronic I-9 program Klasko, Rulon, Stock & Seltzer, LLP

H-1 B LCA Audits Increased DOL enforcement – Wage and Hour division Civil fines, H-1 B LCA Audits Increased DOL enforcement – Wage and Hour division Civil fines, back pay and debarment Criminal enforcement Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site Visits Background Visits (generally unannounced) to employers who have filed or H-1 B Site Visits Background Visits (generally unannounced) to employers who have filed or have approved H-1 Bs or other petitions USCIS announced at least 20, 000 this year Conducted by Fraud Detection and National Security Unit (FDNS) officers or contractors hired by FDNS Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site Visit The Mechanics Unannounced, scripted interview Will ask to see signatory H-1 B Site Visit The Mechanics Unannounced, scripted interview Will ask to see signatory Verify information in H-1 B petition from employer Business operations, locations, employees q Information about H-1 B employee including title, job duties, credentials, salary work location q Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site Visit The Mechanics (cont’d) Photograph facility Tour facility, department or workplace H-1 B Site Visit The Mechanics (cont’d) Photograph facility Tour facility, department or workplace May request paystubs/W-2 s, financials or job description, resumes, etc. Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site Visit The Mechanics Generally will ask to see employee (cont’d) Verify H-1 B Site Visit The Mechanics Generally will ask to see employee (cont’d) Verify position, title, duties, salary, location and requirements q Whether employee paid/reimbursed any money related to H-1 B q Photo ID q May ask to see supervisor or other employees Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site Visit What do we do if we are visited by an H-1 B Site Visit What do we do if we are visited by an Investigator? Appoint a trained, designed company representative and backup Request identification Lead to a conference room or neutral space Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site Visit What do we do if we are visited by an H-1 B Site Visit What do we do if we are visited by an Investigator? (cont’d) Respond to questions – don’t guess Detailed written notes Immigration/in-house Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site How do we prepare? Inform staff of USCIS visits Appoint a H-1 B Site How do we prepare? Inform staff of USCIS visits Appoint a trained, designated company representative with appropriate back-up Maintain immigration documents in central location Klasko, Rulon, Stock & Seltzer, LLP

H-1 B Site How do we prepare? (cont’d) Have immigration counsel’s contact information handy H-1 B Site How do we prepare? (cont’d) Have immigration counsel’s contact information handy in case problems arise Educate all H-1 B employees about the possibility that they will have to meet with FDNS investors Conduct periodic internal audits of H-1 Bs Regularly train personnel on H-1 B regulations and requirements Klasko, Rulon, Stock & Seltzer, LLP

Links The Form I-9: http: //www. uscis. gov/files/form/i-9. pdf The M-274 Handbook for Employers: Links The Form I-9: http: //www. uscis. gov/files/form/i-9. pdf The M-274 Handbook for Employers: http: //www. uscis. gov/files/form/m-274. pdf Klasko, Rulon, Stock & Seltzer, LLP

Klasko, Rulon, Stock & Seltzer, LLP Klasko, Rulon, Stock & Seltzer, LLP

For further information or to request a on-site presentation, please contact: Elise A. Fialkowski, For further information or to request a on-site presentation, please contact: Elise A. Fialkowski, Esq. Kate Kalmykov, Esq. Tele: 215. 825. 8647 Tele: 212. 796. 8856 Fax: 215. 825. 8699 Fax: 212. 297. 1799 E-mail: [email protected] com E-mail: [email protected] com Visit us online: www. klaskolaw. com www. worksite-compliance. com http: //blog. klaskolaw. com Klasko, Rulon, Stock & Seltzer, LLP