elise a. fialkowski kate kalmykov klasko, rulon, stock & seltzer, llp philadelphia new york 1800...

Elise A. Fialkowski Kate KalmykovKlasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 John F. Kennedy Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840 www.klaskolaw.com

Increased Immigration & Increased Immigration & Worksite Enforcement: Worksite Enforcement: Strategies and Solutions to Weather the Perfect Storm

Klasko, Rulon, Stock & Seltzer, LLP

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).

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.

Overview

Increased I-9 Enforcement and Penalties Criminal Enforcement and ICE E-Verify and Data Mining Information Sharing Agreements-USCIS, ICE and OSC OSC Discrimination Claims Fraud Detection and National Security (FDNS)

Investigations Practical Strategies and Best Practices to Protect your

Company NOW

Increased I-9 Enforcement

Background–Form I-9 Immigration Reform and Control Act (“IRCA”) requires

employers to verify identity and employment eligibility of employees hired after 11/6/86

Section 1-Employee Information and Verification- must be completed by the employee at the “time of hire” –1st day of work

Personal information Attestation as to status

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”

Review Original documents that show identity and employment eligibility

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

Background–Form I-9, cont’d Section 3 – Updating and Verification (or new Form I-9) For time-limited work authorization Reverify on or before expiration of work authorization –

documentation of continued work authorization Can NOT ask for a specific document Establish “tickler” system – at least 120 days notice Do NOT reverify an expired US passport or Permanent

Resident card

New ICE Worksite Compliance Strategy 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

ICE Implements Strategy – Since 1/2009 More than 3200 employers audited Over $50 million fines Average employer fine $110,000 180 business owners, managers, supervisors

criminally charged 225 companies debarred from federal contracts

(cont’d)

Calculation of penalties-12/09 Fine Guidance Issued

Penalty knowing hire/employ: $375-$16,000 per employee Penalty substantive/technical violations: $110 to $1,100 per

violation “Violation percentage” and base fine amount Enhancement/Mitigation Factors Example Abercrombie > $1 million fine 09/10

(cont’d)

Increased OSC EnforcementNon-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 Document abuse -$110-$1,100 Back-pay & injunctive relief

Increased OSC EnforcementNon-Discrimination in I-9 Process

Recent increased enforcement Catholic Healthcare West – 11/10 largest ever civil penalty

>$257,000 John Jay College- OSC sought $1100 per employee (settled 2010) Hoover Vacuum 2010 settlement-$10,200 (expired green card) Garland Sales, Inc.-7/8/10 suit alleges different and greater reqs-

non-US Citizens/retaliation Maricopa Community College-8/30/10 suit alleges college imposed

greater requirements on at least 247 non-US citizens Other actions – broad range businesses-landscaping, pool, beauty

(cont’d)

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 non-

citizens/those appearing foreign Do NOT require more than 1 List A or List B &C combination

Simple One Page Form?

Audited I-9

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)

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

Benefits vary depending upon provider and functionality of program

Time-saving: data does not have to be reentered for E-Verify Alerts as to missing fields, inconsistent information and dates Tickler system for reverification Links to HR system Tools to easily purge I-9s consistent with retention

requirements Paperless “green option” — electronic signature, electronic

retention and scanning

(cont’d)

Help features/pop-ups to assist with process/explain documents

Reminder emails to designated HR staff Customization-configured to company’s business

processes Immediate updates with changes in Forms/policy Support for program/E-Verify

(cont’d)

E-Verify Compliance Issues The Basics

Electronic employment eligibility verification system

Checks I-9 information against SSA and DHS databases

Voluntary unless required by state law or federal contractor rule

E-Verify required by State law All employers: AZ, MS, UT, SC*

Contractors: CO, GA, MN, MS, MO, NB, OK, RI, SC, UT

Public employers: AZ, GA, MN, MS, MO, NB, NC, OK, RI, SC, UT, VA

E-Verify Compliance-Is Enrollment Required?

Federal Contractor Rule- “contractors” and “subcontractors” required to enroll 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”

Subcontractors Subcontract must flow from prime contract with E-Verify clause Only for subcontracts for Services or Construction w/value over

$3,000

(cont’d)

E-Verify ComplianceFederal Contractor Rule

General rule 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 May opt to only verify:

New hires assigned to contract, and Existing employees assigned to contract

(cont’d)

E-Verify Compliance Main Employer Responsibilities – MOU

Post notices Agree to visits by ICE and/or designees Attach results to Form I-9 and retain for same time as form Rebuttable presumption of compliance if confirmation is obtained Notify DHS if continues to employ following non-confirmation (civil

penalties $550-$1,100 for failure to notify) If continued employment after Final Non-Confirmation a

rebuttable presumption of violation of INA § 274A(a)(1)(A) is created

Can only leave with 30 days notice

(cont’d)

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

Verification of Eligibility

What you need: Information from Section 1 and 2 from the Form I-9 Identification document provided from List “B” must

contain a photograph Results

Confirmation Tentative Non-Confirmation Final Non-Confirmation

Advantages of Using E-Verify

Rebuttable presumption of compliance if confirmation is obtained 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

E-Verify ComplianceDisadvantages of Using E-Verify

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-9s and related records

(cont’d)

E-Verify ComplianceData Mining & Data Sharing

Memorandum of Agreement- MOA 12/08 USCIS MOA with ICE 3/10 USCIS MOA with Office of Special Counsel (OSC)

Data mining/audits Compliance Tracking & Monitoring System, staff Examples: completion w/i time-line, terminate TNC,

failure notify FNC, selective use, fraudulent use, etc. Referral to ICE and OSC

(cont’d)

Practical I-9 and E-Verify

Compliance Considerations Audit of older I-9s 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

H-1B LCA Audits

Increased DOL enforcement – Wage and Hour division

Civil fines, back pay and debarment

Criminal enforcement

H-1B Site VisitsBackground

Visits (generally unannounced) to employers who have filed or have approved H-1Bs 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

H-1B Site VisitThe Mechanics

Unannounced, scripted interview Will ask to see signatory Verify information in H-1B petition from

employer Business operations, locations, employees Information about H-1B employee including title,

job duties, credentials, salary work location

Photograph facility Tour facility, department or workplace May request paystubs/W-2s, financials or

job description, resumes, etc.

(cont’d)

Generally will ask to see employee Verify position, title, duties, salary, location and

requirements Whether employee paid/reimbursed any money

related to H-1B Photo ID

May ask to see supervisor or other employees

(cont’d)

H-1B Site VisitWhat 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

Respond to questions – don’t guess Detailed written notes Immigration/in-house

(cont’d)

H-1B Site VisitWhat do we do if we are visited by

an Investigator?

H-1B SiteHow do we prepare?

Inform staff of USCIS visits

Appoint a trained, designated company representative with appropriate back-up

Maintain immigration documents in central location

H-1B SiteHow do we prepare?

Have immigration counsel’s contact information handy in case problems arise

Educate all H-1B employees about the possibility that they will have to meet with FDNS investors

Conduct periodic internal audits of H-1Bs

Regularly train personnel on H-1B regulations and requirements

(cont’d)

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

For further information or to request a on-site presentation, please contact:

Visit us online:www.klaskolaw.com

www.worksite-compliance.com

http://blog.klaskolaw.com

Kate Kalmykov, Esq.Tele: 212.796.8856

Fax: 212.297.1799

E-mail: kkalmykov@klaskolaw.com

Elise A. Fialkowski, Esq.Tele: 215.825.8647

Fax: 215.825.8699

E-mail: efialkowski@klaskolaw.com

elise a. fialkowski kate kalmykov klasko, rulon, stock & seltzer, llp philadelphia new york 1800...

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