Tamar JacobyPresident

ImmigrationWorks USA

IMMIGRATION ENFORCEMENT AND COMPLIANCE

2

Enforcement – the big picture I-9 preparedness Is E-Verify right for you? What to do when you get audited

TODAY’S AGENDA

2

3

Part One

ENFORCEMENT – THE BIG PICTURE

3

NEW TREND: SILENT RAIDS

4

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.

SILENT RAIDS – WHAT THEY MEAN FOR EMPLOYERS

5

RISING TIDE OF ICE AUDITS

6

AUDITING EMPLOYERS, NOT DEPORTING WORKERS

7

 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.

Absence of I-9s for many unauthorized workers. Employer failed to respond to SSA inquiries about unauthorized workers.

Double whammy – more aggressive enforcement of anti- discrimination laws.

NEW LEGAL LANDSCAPE

8

9

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.

WORKSITE ENFORCEMENT 

FY2004 – three letters from INS to employers FY2008 – 500 ICE I-9 audits FY2012 – ICE aiming to audit 4,000 employers 

FINES 

FY2006 – $0 collected FY2012 – ICE on pace to collect $15 million

AUDITS HAVE CONSEQUENCES

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

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.

RICO SUITS

12

1313

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.

Part Two

I-9 PREPAREDNESS

14

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 –

Treat all employees the same way. Don’t vary procedures. Don’t fish for answers. Don’t ask for particular documents.

Have a system. Dedicated employees, established procedures, policies and routines you always follow.

Preventive measures will pay off – self audits and course corrections.

A LEGAL CONSENSUS

15

BEST PRACTICESFOR 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 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

16

I-9 COMPLIANCE Make immigration part of all employee handbooks – explain the

criminal exposure. Centralize hiring. Establish clear accountability for hiring and maintaining I-9s. 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!

17

I-9 compliance – 7 tips1. 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

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

Common Mistakes in Hiring

2020

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

2424

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.

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.

E-VERIFY – ACCURACY

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

2727

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

28

Transition headaches, different labor pool

Added burden of government oversight Must permit DHS and SSA inspections

Continued susceptibility to ID fraud

No inoculation from ICE audit

DRAWBACKS OF E-VERIFY

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 ImmigrationWorks 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

30

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

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.

Here too – you can negotiate response time. ASK workers to rectify situation – reasonable time frame. Many workers will flee. Pay employees what’s due them. Treat all similar employees the same way.

34

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.

IT’S NOT OVER EVEN WHEN IT’S OVER

35

CLEAN BILL OF HEALTH

36

TAMAR JACOBYImmigrationWorks USA

737 8th Street, SESuite 201

Washington, DC 20003

202-506-4541info@immigrationworksusa.org

ImmigrationWorks USA is a national federation of employers working to advance better immigration law. The network links major corporations, national trade associations and 25 state-based 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