Stay Out of Jail: Immigration Compliance Issues for Employers Glen M. Krebs Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY / or

Stay Out of Jail I-9 Compliance

Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters)

Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters) E-Verify

Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters) E-Verify Undocumented or improperly documented workers – Employer Sanctions

Stay Out of Jail I-9 Compliance SSN Mismatch (No-Match Letters) E-Verify Undocumented or improperly documented workers – Employer Sanctions ICE Raids

I-9 Compliance Section 1 completed at time of hire

I-9 Compliance Section 1 completed at time of hire Verification docs provided w/in 3 days

I-9 Compliance Section 1 completed at time of hire Verification docs provided w/in 3 days Evidence of current work authorization placed in reverification tickler system

I-9 Compliance Section 1 completed by employee at time of hire Verification docs provided w/in 3 days Evidence of current work authorization placed in reverification tickler system Section 2 completed by employer w/in 3 days of hire

I-9 Compliance Do not require specific documents or more than the law requires

I-9 Compliance Do not require specific documents or more than the law requires Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination

I-9 Compliance Do not require specific documents or more than the law requires Retain forms for the appropriate time – later of: 3 yrs from date of hire or one year after termination Use an adequate tickler system to reverify expiring work authorizations

Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986

Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986 Separate out I-9 forms which no longer need to be maintained

Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986 Separate out I-9 forms which no longer need to be maintained Assure that each employee has a form I-9

Internal I-9 Audit Prepare list of employees hired after Nov. 6, 1986 Separate out I-9 forms which no longer need to be maintained Assure that each employee has a form I-9 Review I-9 for completeness and technical mistakes and make proper corrections

Internal I-9 Audit If necessary, request appropriate documentation or reverify employability

Internal I-9 Audit If necessary, request appropriate documentation or reverify employability Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time

Internal I-9 Audit If necessary, request appropriate documentation or reverify employability Recommend suspension for employee if verification or reverification cannot be completed in a reasonable time Prepare a file memo detailing results of audit and recommendations

Origin of No-Match In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match

Origin of No-Match In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match Employer has no “affirmative duty” to re- verify Employee’s work authorization

Origin of No-Match In 1994 Social Security Administration begins to issue letters to Employer notifying that name and SSN do not match Employer has no “affirmative duty” to re- verify Employee’s work authorization Knowingly employing undocumented workers vs. discrimination based on race or citizenship

DHS New Regulation August 15, 2007 Upon receipt of no-match letter, Employer must check its records and correct if necessary

DHS New Regulation Upon receipt of no-match letter, Employer must check its records and correct if necessary Or, Employer must request the Employee to confirm the name and SSN –if incorrect Employer must make changes

DHS New Regulation Upon receipt of no-match letter, Employer must check its records and correct if necessary Or, Employer must request the Employee to confirm the name and SSN –if incorrect Employer must make changes –if correct, Employer must advise Employee to resolve discrepancy within 90 days of receipt of no-match letter

DHS New Regulation If Employee cannot resolve the discrepancy within 90 days the Employer must –Re-verify the I-9 form within 93 days of receipt of no-match letter

DHS New Regulation If Employee cannot resolve the discrepancy within 90 days the Employer must –Re-verify the I-9 form within 93 days of receipt of no-match letter –Employer may not accept any document which contains the old SSN

DHS New Regulation If Employee cannot resolve the discrepancy within 90 days the Employer must –Re-verify the I-9 form within 93 days of receipt of no-match letter –Employer may not accept any document which contains the old SSN –Employee’s identity must be confirmed by document containing a photo

DHS New Regulation Compliance with these procedures will provide a “Safe Harbor” for Employers – they will NOT be deemed to have constructive knowledge that their Employees are undocumented

California District Court Enjoins Implementation – Oct. 10, 2007 The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation.

California District Court Enjoins Implementation – Oct. 10, 2007 The court found that the American Federation of Labor, et. al. had demonstrated serious questions as to three of their challenges to the rule and therefore issued a preliminary injunction enjoining the implementation of the new regulation SSA decided not to issue any no-match letters until litigation is resolved

DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that

DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized

DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized –There are both innocent and non-innocent reasons for no-match letters, but

DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no-match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized –There are both innocent and non-innocent reasons for no-match letters, but –An Employer may not safely ignore SSA no- match letters, and

DHS Supplemental Final Rule October 28, 2008 DHS’s consistent, if informal, view of SSA no- match letters has been that –SSA no match letters do not, by themselves, establish that an Employee is unauthorized –There are both innocent and non-innocent reasons for no- match letters, but –An Employer may not safely ignore SSA no-match letters, and –An Employer must be aware of and comply with the anti- discrimination provisions of INA

WHAT NEXT ?? Nobody knows

WHAT NEXT ?? Nobody knows Prudent course of action is to implement actions described in the New Regulation

WHAT NEXT ?? Nobody knows Prudent course of action is to implement actions described in the New Regulation But that is not necessary until the District Court’s injunction is lifted

E-Verify Best means available for employers to verify electronically the employment eligibility of their newly hired employees

E-Verify Best means available for employers to verify electronically the employment eligibility of their newly hired employees Does not verify immigration status

E-Verify Best means available for employers to verify electronically the employment eligibility of their newly hired employees Does not verify immigration status Does not protect against workplace enforcement, but does presume that employer did not knowingly hire unauthorized alien

E-Verify You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors

E-Verify You can opt in or opt out at any time – the program is voluntary except for certain employers such as federal contractors For more information: – –

Enforcement DHS – Secure Border Initiative (SBI)

Enforcement DHS – Secure Border Initiative (SBI) Civil Penalties

Enforcement DHS – Secure Border Initiative (SBI) Civil Penalties Criminal Penalties

Enforcement DHS – Secure Border Initiative (SBI) Civil Penalties Criminal Penalties

Secure Border Initiative First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov with increased emphasis on audits and administrative enforcement (Walmart case)

Secure Border Initiative First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov with increased emphasis on audits and administrative enforcement (Walmart case) Second Phase – April Simultaneously identify and remove criminals, immigration fugitives, and other immigration violators, “build strong worksite enforcement compliance programs”

Secure Border Initiative First Phase – Multi-year plan to secure America’s borders and reduce illegal migration. Unveiled in Nov with increased emphasis on audits and administrative enforcement (Walmart case) Second Phase – April Simultaneously identify and remove criminals, immigration fugitives, and other immigration violators, “build strong worksite enforcement compliance programs” JUMBO BUFFET CASE

Secure Border Initiative Fiscal Year 2007 Results –ICE removed 276,912 illegal immigrants –Fugitive Op Teams up to 75 (18 in 2005) –Secured $30 million in fines from employers while making 863 criminal arrests and 4,077 administrative arrests –ICE ACCESS program launched to train local law enforcement to conduct immigration enforcement duties

Civil Penalties Hiring or Continuing to Employ Unauthorized Aliens –1 st Offense:$275 - $2,200 –2 nd Offense: $2,200 - $5,500 –3 rd Offense: $3,300 - $11,000

Civil Penalties Hiring or Continuing to Employ Unauthorized Aliens –1 st Offense:$275 - $2,200 –2 nd Offense: $2,200 - $5,500 –3 rd Offense: $3,300 - $11,000 Failure to Properly Comply with I-9 Requirements –$110 - $1,100 per employee

Civil Penalties Unlawful Discrimination –1 st Offense:$250 - $2,000 –2 nd Offense: $2,000 - $5,000 –3 rd Offense: $3,000 - $10,000

Criminal Penalties Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens –May be fined up to $3,000 per employee or sentenced for up to 6 months imprisonment

Criminal Penalties Pattern or Practice of Knowingly Hiring or Continuing to Employ Unauthorized Aliens –May be fined up to $3,000 per employee or sentenced for up to 6 months imprisonment Engaging in Fraud or False Statements –May be fined up to $10,000 and imprisoned for up to 5 years

Criminal Penalties INA 274 – Bringing in and Harboring –Up to $250,000 fine –Bringing in Up to 10 yrs in Prison –Transporting the employee to evade the law Up to 5 yrs in Prison (10 yrs if for financial gain) –Harboring, Concealing, Shielding, etc. Up to 5 yrs in Prison (10 years if for financial gain)

Criminal Penalties Encourages or induces to come in –Up to 5 yrs in Prison (10 yrs if for financial gain) Conspiracy (10 yrs.) or Aiding and Abetting (up to 5 yrs. in prison) the above

Criminal Penalties INA 277 – Aiding or Abetting the Bringing in of Known Illegal Aliens –Up to 10 yrs in Prison

Criminal Penalties Violations of INA Sections 274 and 277 (among others) constitute predicate offenses and may serve as the basis for prosecution under RICO. This includes criminal penalties and civil penalties including use by legal employees who were affected by violations of the INA or by competitors who lost out on contracts due to immigration violations.

Glen M. Krebs Wyatt, Tarrant & Combs, LLP 250 West Main Street, Suite 1600 Lexington, KY (859)