1. Labor and Employment Solutions for Management 1 ICE Ain’t Cool What Do We DO?? David C. Whitlock, Esq. Elarbee, Thompson, Sapp & Wilson, LLP Immigration Practice Group Atlanta, GA 30303 404.582.8468 whitlock@elarbeethompson.com

2. Labor and Employment Solutions for Management 2 Recent Developments Increased Enforcement Federal Legislation State Legislation

3. Labor and Employment Solutions for Management 3 Increasing Enforcement Bush Administration –IFCO Systems Raid –Fischer Homes Raid –Swift Meat Company Raids –Agriprocessors Raid Obama Administration –July ‘09 652 Audits –Nov. ‘09 1000 Audits –Mar. ‘10 More Audits

4. Labor and Employment Solutions for Management 4 Targeted Industries Agriculture Construction Food Processing Hospitality Textiles Others in national infrastructure

5. Labor and Employment Solutions for Management 5 Comprehensive Immigration Reform We have seen failure of an enforcement-only bill in 2005, a CIR proposal in 2006, and two efforts in the Senate in 2007. The Obama Administration appears to be committed to action and is certainly promoting the dialogue. It is fairly certain that Congress will not get it done this year.

6. Labor and Employment Solutions for Management 6 States Requiring Use of E- Verify Requirement limited to new hires Required for all employers: –Arizona –Mississippi –South Carolina Required for state contractors: –Colorado –Georgia –Minnesota –Missouri –Nebraska –Oklahoma –Rhode Island –Utah

7. Labor and Employment Solutions for Management 7 IRCA Basics: Prohibited Acts Knowingly hire an alien who is not authorized to work Hire any individual without verifying identity and work authorization Continue the employment of a person if the employer knows or should know the person is not authorized to work

8. Labor and Employment Solutions for Management 8 IRCA Basics: Prohibited Acts Require an employee to present any specific document or combination of documents for I-9 purposes Require an employee to present more or different documents than are minimally required for the employment verification process Refuse to accept documents tendered by an employee that reasonably appear to be genuine on their face

9. Labor and Employment Solutions for Management 9 IRCA Basics: Penalties I-9 paperwork violations result in penalty of $110 to $1,100 for each individual Usually, the fine is $1000 per incorrect form. What a STUPED way to spend money !!

10. Labor and Employment Solutions for Management 10 IRCA Basics: Penalties Fine for Knowing Employment Violations –$375 to $3,200 First Violation –$3,200 to $6,500 Second Violation –$4,300 to $16,000 Third + Criminal Sanctions Are Almost Certain After A First Violation !!

11. Labor and Employment Solutions for Management 11 Criminal Penalties ??!! 10 years and/or $250,000 fine for harboring, smuggling, concealing, or transporting illegal aliens for financial gain “But, I didn’t do it for financial gain.” Oh Yes You Did.

12. Labor and Employment Solutions for Management 12 Photocopy Rule Copying of documents presented by the employee permitted but not required Mere copying of documents does not constitute compliance and will result in penalties if form is not also properly completed Photocopies can be used to correct problems identified during a periodic self-audit or in advance of a government audit

13. Labor and Employment Solutions for Management 13 Rehired Employees A new I-9 form need not be completed for persons re-hired within three years of completing a prior I-9 form Instead, the employer can update the prior I-9 form by confirming that the employment eligibility document originally presented remains valid If still valid, the employer merely records the re-hire date in Section 3 of the form

14. Labor and Employment Solutions for Management 14 Reverification If the employee's work authorization document expires, you must reverify the employee’s right to work prior to the expiration of the current work authorization document Only reverify on the basis of the document presented; ignore any expiration date in Section 1 Failure to make a timely reverification is almost always construed as knowingly continuing the employment of an alien who lacks authorization to work

15. Labor and Employment Solutions for Management 15 Reverification Reverification is accomplished by examining a new work authorization document and completing Section 3 of the form The new document type, number, and expiration date, if any, should be recorded in Section 3 and the employer should sign and date Section 3 of the form Reverification is not necessary for identity documents, U.S. passports, or Permanent Resident cards

16. Labor and Employment Solutions for Management 16 Retention of I-9 Forms I-9 forms must be retained for three years from the date work commences and for one year from the date employment terminates If you do not meet both tests, do not throw out the form This means an employer must have a form for every single current employee hired after November 6, 1986

17. Labor and Employment Solutions for Management 17 Retention of I-9 Forms Keep I-9 forms in files separate from employees’ personnel files, so that ICE does not obtain access to information in personnel files in the event of an audit We recommend you keep current employee forms separate from terminated employee forms Keeping I-9 forms separate makes it easier to pull them quickly in the event of an audit and easier to correct

18. Labor and Employment Solutions for Management 18 “So, what do we do??” Audit your I-9 forms. Enforcement today will almost certainly begin with an I-9 audit by ICE. Use SSA online verification. www.ssa.gov/employer/ssnvs.htm www.ssa.gov/employer/ssnvs.htm DO NOT sign up for E-Verify or IMAGE programs until mandatory. Review and process mismatch letters. Follow the terms of the DHS safe harbor rule. Create paper buffer with contractors. Urge Congress to enact CIR.

19. Labor and Employment Solutions for Management 19 Step 1 Generate a list of employees hired since November 6, 1986. It will be easier later if the list matches the order in which your I-9 forms are filed. The list should show last name, first name, date of hire, date of termination, and some distinguishing fact, e.g., SSN or DOB, in case two employees have the same name. For persons re- hired, show each start/term date.

20. Labor and Employment Solutions for Management 20 Step 2 Calculate the retention dates for persons on the list by comparing date of hire, date of termination, and the date of your self-audit. The easiest way to do this is to write down the date that is one calendar year prior to the audit date. That becomes the target termination date. Then subtract two years to get the target hire date. Highlight the names of those for whom you don’t need to keep a form.

21. Labor and Employment Solutions for Management 21 Step 3 Pull forms for highlighted names from the I-9 file. Do not throw them away until someone else has confirmed that you need no longer retain the form by confirming that the two retention tests (three years from date of hire and one year from date of termination) have been met. Hold onto these forms in case you need them to complete a later I-9 form.

22. Labor and Employment Solutions for Management 22 Step 4 Begin checking I-9 forms, working in the same order as the names on the list. As each form is reviewed, put a check mark on the list next to the appropriate name. Set aside forms for whom there is no name on the list as you go through it, as these are probably forms for people whose names changed.

23. Labor and Employment Solutions for Management 23 Step 5 Use “stick-on” notes to show problems with the forms. Be aware that forms may have multiple problems. Do not circle errors or write notes on original forms.

24. Labor and Employment Solutions for Management 24 Step 6 Begin correcting forms that have been reviewed. If you have retained photocopies of documents, many form deficiencies may be cured. In addition, information from employee personnel files may be helpful. If anything is added to Section 1 of the form, remember to complete the Preparer/Translator portion of the form. Use the audit date as the date to insert in the Preparer/Translator portion of the form.

25. Labor and Employment Solutions for Management 25 Step 6.5 If information is added to the form, try to use the same color ink. Do not use correction fluid or tape to cover up incorrect information or for any other purpose; instead, simply cross out the incorrect information. If you are adding information to the form, it is optional to include the words “Self- Audit” and the date of the audit.

26. Labor and Employment Solutions for Management 26 Step 7 If necessary, ask employees to sign or date Section 1 of the form or present correct documents.

27. Labor and Employment Solutions for Management 27 Step 8 As forms are corrected, cross out items on the “stick-on” notes. When all items are crossed out, remove the “stick-on” note. When the form is correct, re-file it. Annotate the list to show how forms have been corrected. This helps identify recurring problems for training purposes.

28. Labor and Employment Solutions for Management 28 Step 9 There may be some forms which simply cannot be cured. For example, you may have terminated employees from whom you accepted invalid documents, but the form cannot yet be discarded. Annotate the list to show a “major” problem, remove the “stick-on” note, and re-file the form.

29. Labor and Employment Solutions for Management 29 Step 10 When you have reviewed all forms and corrected all defects, review the annotated list to see what forms you are missing. See if any of the forms you set aside for lack of a name on the list should be filed under a different name. Any employees for whom no form can be found should be called in immediately to complete a form.

30. Labor and Employment Solutions for Management 30 Step 11 If a significant number of forms are missing or defective for terminated employees, consider keeping separate I-9 files for current and terminated employees. This may be helpful during the process of discarding forms periodically, and there is less likelihood that ICE will ask to see forms for terminated employees if the forms for current employees are in good shape.

31. Labor and Employment Solutions for Management 31 Step 12 Add up the number of missing forms and major problems to calculate your exposure. Missing forms are generally penalized at around $1100 per form for the record-keeping violation plus around $1500 per person for a knowing employment violation. (ICE assumes that persons without forms are illegal.) Major problems usually result in fines of $1000 per form.

32. Labor and Employment Solutions for Management 32 Step 13 Discard forms that you are certain you need not keep. Follow the retention rule closely: Have I kept the form for 3 years from DOH?... And... Have I kept for form for 1 year form DOT?

33. Labor and Employment Solutions for Management 33 Step 14 Plan your next I-9 audit. If your exposure in Step 12 is significant, consider immediate training of staff who complete I-9 forms so that you can minimize the potential exposure going forward.

34. Labor and Employment Solutions for Management 34 Correcting Forms You cannot fix late completions, untimely reverifications, or missing status information for terminated employees. If information is missing, get it and add it to the form – “late” is better than “missing” or “wrong.” NEVER use correction fluid or blacken out information! –Instead, line through the erroneous information in a non-destructive manner. Write the new information in the adjacent margin. –Optional to initial and date the change. –Write “self-audit” next to change.

35. Labor and Employment Solutions for Management 35 Filing System File all current employee forms alphabetically by last name in binders. For current employees with an employment authorization expiration date, create a tickler file. Label 15 manila folders – one for each month and one for each of the next 3 years. Sort I-9s chronologically according to the date the work authorization expires.

36. Labor and Employment Solutions for Management 36 More Filing System Sort I-9s chronologically according to the month or year the work authorization expires. Work this folder 30 days in advance and call in workers to remind them of the need to bring in documents for reverification and completion of Section 3 of the form. As you complete Section 3, re-file the form in the ticker or main alpha file.

37. Labor and Employment Solutions for Management 37 Still More Filing System Create the same manila folder system for terminated employee forms and sort them by month and/or year according to the discard date. Work this file two months behind – i.e., two months prior to the current month. Confirm that the retention tests have been met before discarding forms.

38. Labor and Employment Solutions for Management 38 If ICE Comes Knocking Insist on the 3 Day Notice period Make and keep copies of ALL documents you give to ICE/DOL Get name, telephone number, business card of lead agent Do not consent to ICE speaking to employees on premises -- ask them politely to stop Prepare memorandum setting out what happened If you allow inspection on site, keep agents away from employees and other business records

39. Labor and Employment Solutions for Management 39 IRCA Documents List A Documents prove both identity and employment eligibility: US Passport (expired or unexpired) Unexpired foreign passport with I-551 stamp Permanent Resident card (I-551) Temporary Resident card (I-688) Employment Authorization card (I-766)

40. Labor and Employment Solutions for Management 40 IRCA Documents List B Documents prove only identity: –Driver’s license or state ID card with photo or basic data –ID card issued by government agency with photo or basic data –School ID card –Voter Registration card –US military card or draft record –Military dependent’s ID card –US Coast Guard Merchant Mariner card –Native American tribal document –Canadian driver’s license –School record or report card –Clinic, doctor, or hospital record –Day-care or nursery school record

41. Labor and Employment Solutions for Management 41 IRCA Documents List C Documents prove only employability : –US Social Security card issued by SSA unless restricted –Certification of Birth Abroad issued by State Department –Original or certified copy of official birth certificate –Native American tribal document –US Citizen ID Card (I-197) –ID Card for use of Resident Citizen in the US (I-179) –Unexpired employment authorization issued by DHS other than those in List A

42. Labor and Employment Solutions for Management 42 THANK YOU David C. Whitlock, Esq. Elarbee, Thompson, Sapp & Wilson, LLP Immigration Practice Group Atlanta, GA 30303 404.582.8468 whitlock@elarbeethompson.com