Worksite Enforcement Update Elise A. Fialkowski Feige M. Grundman

Recent Enforcement Trends “Buy American Hire American” Executive Order Increased I-9 audits Increased FDNS site visits Increase in raids Increased in IER enforcement Public Exam File audits by the DOL Third-party employment relationships

From the ICE Worksite Newsroom IMAGE program ICE operation in LA 2/2018 212 arrests, 122 Notices of Inspection Focus on “criminality” Largest civil settlement record: Asplundh Tree Experts 9/2017 $95 million dollar recovery, including $80 million dollars criminal forfeiture money judgment and $15 million dollars in civil payment Higher management “willfully blind” while lower management knowingly hired unauthorized workers

Substantive / Uncorrected Fine Schedule

Enhancement Matrix

IER Enforcement Information sharing/E-verify Data mining Examples of IER fines/fine structure Joint IER (OSC) guidance for audits

I-9 Developments Termination of DACA/reverification Updated I-9 Central FAQS Wrong version I-9 completed Digital DLs

DACA and Related I-9 Issues Protects certain undocumented immigrants brought to the U.S. as children from deportation and provides for temporary work authorization Over 800,000 individuals covered by the program September 5, 2017: DHS releases Memorandum ending DACA effective March 5, 2018 January 9, 2018: Federal judge orders USCIS to accept applications while lawsuit is pending BUT: applications may not be adjudicated before the lawsuit resolves Automatic EAD extension rule does NOT apply to DACA

What It Means for Employers Employees can continue working on EADs until they expire Prior to EAD expiration date, employers must reverify I-9 Ensure you have a reminder system in place for I-9 reverification Cannot require a specific document for I-9 reverification purposes

I-9 Best Practices Written I-9 policy Do not request or require specific I-9 documents Internal compliance and training program Secondary review I-9 audits by external firm or trained person not involved in the process Protocols to respond to tips/constructive knowledge Policies/procedures to avoid discrimination Maintain copies of documents (confirm proper version) Consider electronic I-9 storage and/or generation

How To Handle NOI? Audit/Fine? Notice of Inspection (NOI) Timing – 72 hours! Extension? Self-Audit/Notice Notice of Suspect Documents/Fine OCAHO – often pays to challenge fine