Presented by: Linda J. Armstrong, Shareholder Butzel Long, A Professional Corporation 150 West Jefferson Avenue, Suite 100 Detroit, Michigan (313)

Immigration Fundamentals

Basic Division of Immigration Law Nonimmigrant Status Immigrant Status - Lawful Permanent Resident (“LPR”), also referred to as Green Card Holder Citizenship - Naturalization

Common Terms Visa – Issued by State Department / U.S. Embassy or Consulate

Common Terms I-94 Card – Issued at Port of Entry into the U.S. Controls the Stay in the U.S.

Common Terms Authorized Stay – generally the period of stay stated on the I-94 card Unlawful Presence – generally the time beyond the date on the I-94 card

Agencies Involved in Enforcement Department of Homeland Security (“DHS”) – United States Citizenship and Immigration Service (“USCIS”) – United States Customs and Border Patrol (“USCBP”) – United States Immigration and Customs Enforcement (“USICE”) United States Department of Labor (“DOL”) United States Department of State (“DOS”)

Employment Eligibility Verification: Form I-9

Revised I-9 Form 11/7/2007 USCIS announced revised I-9 is available Must start using new I-9 as of 12/26/07 – Form contains revision date in bottom right corner of 6/5/07 – Revised Form changes list of acceptable documents from List A – Social Security not required under Section 1 unless employer participates in E-verify

Changes to Form I-9 Five documents have been removed from the List A of acceptable documents – Certificate of US Citizenship – Certificate of Naturalization – Alien Registration Receipt Card (I-151) – Unexpired Re-entry Permit – Unexpired Refugee Travel Document One document added to List A – Unexpired Employment Authorization Document (I-766)

New Revised I-9 Form 12/12/2008 USCIS announced revised I-9 to be implemented 2/2/2009 – Purpose to improve integrity of employment verification process to prevent unauthorized employment in U.S. 1/30/2009 USCIS announced delay of 60 days to implementation of final rule New Form I-9 may be effective 4/3/2009

New Revised I-9 Form Two documents added to List A: – Temporary I-551 printed notation on a machine- readable immigrant visa (in addition to the foreign passport with a temporary I-551 stamp, currently accepted) – Passport from the Federal States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the U.S. and FSM or RMI

New Revised I-9 Form Three documents removed from List A: – Form I-688, Temporary Resident Card – Form I-688A, Employment Authorization Card – Form I-688B, Employment Authorization Card (These documents are no longer issued and have expired) Requires that all documents presented during verification process be unexpired (Current regulations permit U.S. passport and all List B documents to be acceptable even if expired) Adds “U.S. Passport Card” as alternative to U.S. Passport on List A Changes made to Section 1 Attestations

New Revised I-9 Form New Form I-9 available on Handbook for Employers, Instructions for Completing the Form I-9 will also be available on USCIS website

Completing Form I-9 Section 1, Employee Information and Verification To be completed and signed by the employee at the time employment begins It is up to the employer to ensure that Section 1 is completed timely

Section 1

Completing Form I-9 Section 2, Employer Review and Verification Must be completed within 3 days of hire Examine one document from List A -OR – Examine one document from List B and one from List C, and record the title, number and expiration date, of any, of the document(s) Employers CANNOT specify which document(s) they will accept from an employee

Section 2

List of Acceptable Documents Documents that establish both identity and work authorization (List A document) – OR – Documents that establish identity (List B document) AND Documents that establish work authorization List C document)

List A United States Passport or US Passport Card Permanent Resident Card or Alien Registration Receipt Card (I-551) Unexpired foreign passport with a temporary I-551 stamp or temporary I-551 printed notation on a machine- readable immigrant visa Employment Authorization Document that contains a photo (I-766) Unexpired foreign passport with an unexpired Form I-94 authorizing employment and containing the foreign national’s nonimmigrant status Passport from Federated States of Micronesia or the Republic of the Marshall Islands with Form I-94

List B Driver’s license issued by a state or outlying U.S. possession with photo ID card issued by a state or outlying possession School ID card with photo Voter registration card U.S. Military card or draft record Military dependent’s ID card U.S. Coast Guard Merchant Mariner Card Native American tribal document Canadian driver’s license or ID card with a photograph

List C Social Security card without employment restrictions Certificate of Birth Abroad issued by U.S. Department of State Certificate of Report of Birth issued by Department of State U.S. Birth Certificate U.S. Citizen ID Card ID Card for Use of Resident Citizen in the US (I-179) Native American tribal document Unexpired employment authorization document issued by Department of Homeland Security

Updating and Re-verifying Form I-9 Employers must complete Section 3 when updating and/or re-verifying the I-9 Form Employers must re-verify employment eligibility of their employees on or before the expiration date recorded in Section 1 (based on I-94 Card, Employment Authorization Document, etc.) Do not need to re-verify “Green Cards” with Expiration dates (even Conditional Permanent Residents)

Section 3

Form I-9 Employers must retain completed I-9s for three (3) years after the date of hire or one (1) year after the date employment ends, whichever is later Electronic storage of I-9s permitted Employers may, but are not required to photocopy the document(s) presented

Common Problems Employee/employer fails to sign Form I-9 Employer completes Section 1 for employee Employer fails to note document numbers and expiration dates in Section 2 Employer fails to complete Section 2 of Form I-9 and merely attaches photocopies of acceptable documents to the form Form I-9 is not completed on a timely basis Employer requests specific documents evidencing identity and/or employment eligibility Employer fails to request original documents and accepts photocopies or faxed documents Form I-9 is discarded too soon Failure to re-verify when necessary

ICE or DOL AUDIT How does an Audit Begin? Lead driven or random Notice of Inspection Attachment to Notice of Inspection – I-9 Forms – Quarterly earnings report forms – List of all current employees – List of all employees recently terminated

Actual Inspection Documents reviewed at USCIS or employer’s place of business Each and every box of I-9s is examined Personnel list is compared with state or federal earnings report Earning Reports and personnel lists are compared with names on I-9s List of current and terminated employees compared to I-9s retained “A” numbers verified Social Security numbers verified

Audit Outcome Employer is in compliance, no further action required If violations found, Notice of Intent to Fine can be issued If pattern and practice of hiring violations, criminal penalties are possible, may be referred to U.S. Attorneys Office for prosecution If violations found, employer will be ordered to cease and desist from further violations

Paperwork Violations Penalties $110 - $1,100 per violation, per form Amount of fine depends on following: – Size of business – Employers good faith in completing I-9 – Seriousness of violation – Employment of unauthorized aliens – Employer’s history No criminal penalties

Unauthorized Employment of Alien Penalties First violation $375 - $3,200 per violation Second violation $3,200 - $6,500 per violation Third violation $4,300 - $16,000 per violation Criminal prosecution with $3,000 fine per employee and/or six months jail if pattern or practice established

E-Verify

E-Verify Provides a means for participating employers to verify the employment eligibility status of newly- hired employees E-Verify can ONLY be used to verify NEW hires and must be initiated after the employee accepts the position (hire date) and within 3 days of the employee actual start date. Must be applied to all new hires, regardless of citizenship status

E-Verify System queries databases of SSA and DHS There is a registration process: Employer must sign Memorandum of Understanding – Agree to onsite visits by ICE or others – Agree to notify DHS if employer continues to employ individual after receiving notification of nonconfirmation User submits information provided in Form I-9 Initial verification issued in seconds

E-Verify One of three results: Employment Authorized – Employee is authorized to work. Employer records the system-generated verification number on the Form I-9 SSA Tentative Nonconfirmation – There is an information mismatch with SSA. Employee can contest findings and then resolve issue with either SSA or DHS DHS Verification in Process – DHS will usually respond within 24 hours with either an Employment Authorization or DHS Tentative Nonconfirmation (TNC) If TNC – review notice with employee Employee can “contest” or “not contest” Employee continues to work while case is being resolved

E-Verify & Federal Contractors 6/9/08: DHS designated E-Verify as Employment Eligibility Verification System for all federal contractors Effective date postponed. Current effective date is 5/21/09 – Employers are required to enroll in E-Verify within 30 days of the contract award date – Employers must confirm the employment eligibility of all persons hired during a contract term and all persons assigned to work on the contract Exception for Institutes of Higher Education: may choose to verify only new hires assigned to contract and existing employees assigned to contract Only applies to contracts with value in excess of $100,000 and periods of performance longer than 120 days

E-Verify and Extension of Employment Authorization 17 month extension of post-completion OPT possible if: – Student has a bachelor, master or doctorate degree in science, technology, engineering, or mathematics degrees – Employer enrolled in E-Verify – Student applies for extension at least 90 days before current OPT expires – Problem area Employers using wrong company ID number: I-765’s being denied

For More Information on E-Verify Employers who have general questions about E- Verify should call DHS at (888) E-Verify Website:

Social Security “No Match” Letters What is a “No Match” letter? – Letter from SSA indicating a person’s name and Social Security Number does not match SSA records – Sent to employers who have more than 10 No- Matches that represent more than.5% of W-2s submitted by employer

Social Security “No Match” Letters DHS published a final rule on 8/15/07 to become effective 9/14/07 On 8/29/07, the AFL-CIO filed a lawsuit against Chertoff and district court granted plaintiffs’ initial motion for a temporary restraining order against implementation of the August 2007 Final Rule On 10/10/07, the district court granted plaintiff’s motion for preliminary injunction

Social Security “No Match” Letters Specifically the court questioned whether DHS had: – Supplied a reasoned analysis to justify what the court viewed as a change in the Department’s position – that a no-match letter may be sufficient by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work-authorized – Exceeded its authority by interpreting the anti- discrimination provisions of the Immigration Reform and Control Act of l986 (IRCA) – Violated the Regulatory Flexibility Act

Social Security “No Match” Letters 3/26/08 DHS published a Supplement Proposed Rule to Amend its regulations that provide a “safe harbor” from liability for employers who follow certain procedures after receiving SSA no-match letter 10/23/08 DHS issued supplemental final rule which expanded 3/26/08 proposed rule Preliminary injunction still in place

Social Security “No Match” Letters “No match” letter is not a basis for taking adverse action against an employee Discrepancy does not constitute notice that an employee lacks lawful immigration status Conduct routine review – Give employees a chance to provide corrected information and resolve issues with SSA individually – Do not treat differently based on nationality or immigration status

Social Security “No Match” Letters

Check employer’s records to determine if clerical error - within 30 days of receiving “no match” letter If clerical error ask employee to cross out incorrect information, correct and initial If no clerical error ask employee to confirm that employees records state correct information

Social Security “No Match” Letters If employee indicates information is wrong, correct error If employee indicates information is correct, ask employee to pursue matter with SSA If matter not resolved within 90 days of receiving “no match” letter, employer should follow verification procedure in proposed regulations

Social Security “No Match” Letters Verification Procedure Complete a new I-9 Form within 93 days Establish identity and/or employment authorization – employee may not use documents containing SSN or alien number listed in the “no match” letter Employee may only use documents that have the employee’s photograph

Questions?