IMMIGRATION ENFORCEMENT AND COMPLIANCE Tamar Jacoby President Immigration

IMMIGRATION ENFORCEMENT AND COMPLIANCE Tamar Jacoby President Immigration. Works USA

TODAY’S AGENDA § § 2 Enforcement – the big picture I-9 preparedness Is E-Verify right for you? What to do when you get audited 2

Part One ENFORCEMENT – THE BIG PICTURE 3 3

NEW TREND: SILENT RAIDS 4

SILENT RAIDS – WHAT THEY MEAN FOR EMPLOYERS § Audits reach more companies than raids. Instead of hundreds of agents going after one company, now a few agents go after hundreds of companies. § Audits force businesses to terminate every unauthorized immigrant – not just those on the job at the time of a raid. § Audits limit future hiring. § After an audit, unauthorized workers may seek employment at a competing company. 5

RISING TIDE OF ICE AUDITS 3000 2500 2000 1500 1000 500 0 FY 2008 6 FY 2009 FY 2010 FY 2011

AUDITING EMPLOYERS, NOT DEPORTING WORKERS 6000 WORKSITE ENFORCEMENT ARRESTS 5000 4000 3000 2000 1000 0 7 Administrative arrests Criminal arrests FY 2003 FY 2004 FY 2005 FY 2006 FY 2007 FY 2008 FY 2009 FY 2010

NEW LEGAL LANDSCAPE § Criminal charges against employers and management. § Most common charges – pattern or practice of knowingly hiring unauthorized workers, harboring unauthorized workers. § “Reckless disregard” standard. § Inferred knowledge. ü Absence of I-9 s for many unauthorized workers. ü Employer failed to respond to SSA inquiries about unauthorized workers. § Double whammy – more aggressive enforcement of anti discrimination laws. 8

POSSIBLE CHARGES § Criminal sections of IRCA § Racketeer Influenced and Corrupt Organizations Act (RICO). § Identity theft. § Bringing, encouraging, transporting, harboring and concealing unauthorized immigrants. § Money laundering. 9

AUDITS HAVE CONSEQUENCES WORKSITE ENFORCEMENT § FY 2004 – three letters from INS to employers § FY 2008 – 500 ICE I-9 audits § FY 2012 – ICE aiming to audit 4, 000 employers FINES § FY 2006 – $0 collected § FY 2012 – ICE on pace to collect $15 million 10

CASE STUDY – NATIONAL BURRITO CHAIN § Audited in Minnesota, Virginia, Washington DC. § Lost 450 of 1, 200 employees in Minnesota. § Protests by labor and immigrants rights groups. § Customers complained about service as company trained new employees. § $1. 3 million in legal costs in first year alone. § DOJ criminal investigation ongoing. 11

RICO SUITS § In 1996, Congress expanded the Racketeer Influenced and Corrupt Organizations Act to include violations of federal immigration law. § Knowingly hiring illegal immigrants systematically and on a large scale can fall under RICO. § A RICO conviction carries triple penalties. § In 2002, a major chicken processor was accused of seeking out illegal immigrants and faced a RICO lawsuit. The suit lasted six years until the court finally dismissed the charges. § RICO cases are rare – six in two years, none successful. 12

SOCIAL SECURITY NO MATCH LETTERS ARE BACK § SSA resumes no-match letters to employers in April 2011. § DOJ Office of Special Counsel issues dos and don’ts. § MOST IMPORTANT DON’T – Don’t jump to conclusions. § Conduct follow-up on the no-match letter, document all follow-up activities. § The no-match letter alone is not valid grounds for termination. § Do not terminate without consulting legal counsel. 13 13

Part Two I-9 PREPAREDNESS 14

A LEGAL CONSENSUS § Immigration law firms have learned the hard way – it pays to listen to their DOS and DON’TS § See a sampling of tips in the slides that follow. § All agree on three core points – ü Treat all employees the same way. Don’t vary procedures. Don’t fish for answers. Don’t ask for particular documents. ü Have a system. Dedicated employees, established procedures, policies and routines you always follow. ü Preventive measures will pay off – self audits and course corrections. 15

BEST PRACTICES FOR I-9 COMPLETION GET THE BASICS RIGHT § § Provide adequate training and clear written policies for your HR staff Take all instructions on the form literally and fill in every blank Meet every deadline lateness cannot be cured Workers’ documents must be original and unexpired BE CONSISTENT § § Treat all employees the same regardless of national origin or citizenship status Do not ask for additional or different documents BE PREPARED § § § 16 Conduct regular self-audits – catch your own mistakes Deal with constructive knowledge situations (no-match letters, complaints about unauthorized workers) But refrain from jumping to conclusions or taking action prematurely

I-9 COMPLIANCE § § § § 17 Make immigration part of all employee handbooks – explain the criminal exposure. Centralize hiring. Establish clear accountability for hiring and maintaining I-9 s. Treat all workers the same regardless of national origin or citizenship status. Do not demand more or different documents from any employee. Institute standard procedures to follow when receiving government inquiries. Don’t ignore red flags!

I-9 compliance – 7 tips 1. Establish an IRCA compliance policy. 2. Do not delegate I-9/visa responsibilities to the department making the hire. 3. Accept only original documents. 4. Track dates of hire and termination, purge files no longer required for retention. 5. Conduct preventative audits. 6. Automate a reverification system. 7. Switch to an electronic I-9 system. 18

Best practices for 1 -9 19

Common Mistakes in Hiring § Unequal treatment because of citizenship or immigration status § Unequal treatment because of nationality, which includes place of birth, appearance, accent and language § Asking for specific documents from employee, such as “Green Card” § Verifying some people’s documents and not others § Having a citizen-only hiring policy 20 20

Ten 1 -9 mistakes 21

Correcting Errors Found During an In-House I-9 Audit § New I-9 form should not be substituted for incorrect, old I-9 § I-9 may either be corrected, showing date of correction, or § New amended I-9 completed and stapled to old incorrect I-9 22

Part Three IS E-VERIFY RIGHT FOR YOU? 23

WHAT IS E-VERIFY § Free, voluntary, internet-based system to confirm the legal status of newly hired employees. § Created in 1996, rapid growth in recent years. § Compares SS# and DHS immigration databases to the employee’s name and other Form I-9 information. § Takes three to five seconds to process. 24 24

E-VERIFY – ACCURACY § 96 percent of E-Verify inquiries correctly determine employment authorization. § 99. 5 percent of work-authorized employees verified through E-Verify are verified without secondary processing. § Inaccuracy rate for authorized workers is less than 1 percent. § More than three-quarters of the cases in which there is an inaccurate determination are unauthorized workers. § Inaccuracy rate for unauthorized workers estimated in the 50 percent range. (E-Verify does not catch identity theft. ) § As of April 2012, more than 345, 000 employers were using the system, up from 9, 300 in June 2006. 25

RESTAURATEURS USING E-VERIFY § First months can be confusing and disruptive – transition issues. § Applicant pool changes. Turnover often increases. New training procedures sometimes required. § After transition period, many restaurateurs seem satisfied. 26

BENEFITS OF E-VERIFY § Controllable costs now vs. uncontrollable costs later if company is audited § Discourages unauthorized job applicants § Fewer discrepancies in Social Security records § Limited safe harbor under federal and state laws § Favorable public image § Eligibility for federal and some state contracts § Prerequisite for business license in some states § Shows intent to comply – a plus with ICE auditors 27 27

DRAWBACKS OF E-VERIFY § Transition headaches, different labor pool § Added burden of government oversight Ø Must permit DHS and SSA inspections § Continued susceptibility to ID fraud § No inoculation from ICE audit 28

E-VERIFY IN CONGRESS § Mandating E-Verify for all employers was a priority for House Judiciary Chairman Lamar Smith. § Smith’s mandate passed in the House Judiciary committee. § U. S. Chamber, National Restaurant Association and Immigration. Works supported the Smith bill – because of safe harbor provisions and preemption language. § Opposition from agriculture and anti-preemption Republicans has prevented bill from coming to the floor. § E-Verify must be extended by Congress before October 2012. § LONG VIEW – mandatory E-Verify is coming. Not if, but when. 29

E-VERIFY IN THE STATES § 19 states mandate E-Verify for some or all employers. § Some states mandate only for state agencies or state contractors, others for all employers, public and private. § Depending how you count, seven to nine states mandate E-Verify for all employers: Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Utah. § 2011 California law prohibits state and municipalities from requiring E-Verify. 30 30

Part Four WHAT TO DO WHEN YOU GET AUDITED 31

BE PREPARED – A TALE OF TWO AUDITS § Regional staffing company and national cleaning service. § Full preventive audit vs. last-minute dash to comply. § Five violations vs. half of workforce. § $10 to $25 per I-9. § Shows company where to improve. § Self-audits and preventive efforts make a difference in ICE eyes. 32

DEFENDING AN ICE I-9 AUDIT § Cooperate, but know your rights § Do not waive the 72 -hour response time § You can negotiate for more time § Seek legal counsel § Keep copies of all documents provided to ICE § Do not accept the ICE agent’s assessment as final § Review Notice of intent to fine with counsel § Negotiate liability and amount of penalty § Consider appealing 33

THE OUTCOME § ICE response can take months. § Notice of discrepancies – things you can fix. § Notice of unauthorized aliens. ü Here too – you can negotiate response time. ü ASK workers to rectify situation – reasonable time frame. ü Many workers will flee. ü Pay employees what’s due them. ü Treat all similar employees the same way. 34

IT’S NOT OVER EVEN WHEN IT’S OVER § An audit is not the end – it’s often the beginning of a relationship with ICE. § Past audits increase the likelihood of future audits. § ICE may encourage enrollment in E-Verify or IMAGE. § Negotiation is often possible – be prepared. § ICE may not be so friendly the second time around. 35

CLEAN BILL OF HEALTH 36

TAMAR JACOBY Immigration. Works USA 737 8 th Street, SE Suite 201 Washington, DC 20003 202 -506 -4541 info@immigrationworksusa. org Immigration. Works USA is a national federation of employers working to advance better immigration law. The network links major corporations, national trade associations and 25 statebased coalitions of small to medium-sized business owners concerned that the broken immigration system is holding back the growth of the U. S. economy. Their shared aim: legislation that brings America’s annual legal intake of foreign workers more realistically into line with the country’s labor needs. 37