challenges: quotas, delays, and enforcement

Challenges:Quotas, Delays, and

Enforcement

Klasko, Rulon, Stock & Seltzer, LLPKlasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 JFK Blvd., 17th Floor 317 Madison Ave. Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

www.klaskolaw.com

Immigration

Annual Seminar – April 10, 2008

Klasko, Rulon, Stock & Seltzer, LLP

H. Ronald Klasko, Esq.

Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 25 years.

Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee, its Task Force on H and L Visas and Business Immigration Committee. Mr. Klasko is one of only two practicing lawyers to receive the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law.

Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 edition selected Ron as the “most highly regarded” business immigration lawyer in the world. He is a frequent author and lecturer on business-related immigration topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School.

Ron is a graduate of the University of Pennsylvania School of Law.


Richard R. Rulon, Esq.

Rich Rulon has been practicing immigration law for more than 30 years. Rich is a member of the American Immigration Lawyers Association (AILA), is a former Chair of AILA’s Philadelphia Chapter, has served on the Board of Governors of AILA and the Immigration Reform Committee. He has also served on the Board of Trustees of the American Immigration Law Foundation (AILF) including six years as Chairman and was the recipient of AILF’s 2005 Honorary Fellow Award for lifelong service to the field of immigration and nationality law.

Rich has been a lecturer at seminars on immigration law subjects and at AILA Annual Conferences; has authored numerous articles on immigration law topics and has played and continues to play an active role in helping to shape immigration reform legislation.

Rich was selected for inclusion in The Best Lawyers in America and also as a “Pennsylvania Super Lawyer.”

Rich is a graduate of the University of Pennsylvania Law School.


William A. Stock, Esq.

William A. Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for nearly 15 years.

Bill is featured in The Chambers Global Guide, The Best Lawyers in America, and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award, given to the lawyer under age 35 who has made the most outstanding contributions to the field of immigration law.

Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and currently is an Adjunct Faculty Member at Villanova University School of Law.


Suzanne B. Seltzer, Esq.

Suzanne B. Seltzer is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP, and manages the New York office. Suzanne is well known for her representation of universities, hospitals and research institutions and their medical and research personnel in obtaining extraordinary ability and national interest waiver immigrant petitions, O-1 nonimmigrant visas, and waivers of the two-year home country residence requirement.

Suzanne is a member of the National Coalition for Access to Healthcare, Co-Chair of AILA’s NY District Director Liaison Committee, and Co-Chair of the NYC Anti-Trafficking Network’s legal subcommittee. Suzanne is a frequent speaker on immigration options available to international medical graduates and research scientists, and is the author of several articles.

Suzanne was honored with the Cornerstone Award by the Lawyers Alliance for New York in recognition of her outstanding contributions to pro bono work on behalf of non-profit agencies, and the Samuel E. Klein Pro Bono Award for her work on behalf of victims of human trafficking.

Suzanne is named in The Best Lawyers in America, Super Lawyers, and holds the highest rating of “AV” (LexisNexis Martindale-Hubbell).

Suzanne obtained her JD from Georgetown University Law Center.


Elise A. Fialkowski, Esq.

Elise Fialkowski has practiced immigration law for more than 14 years and is a Partner at Klasko, Rulon, Stock & Seltzer, LLP, with offices in Philadelphia and New York. Elise regularly assists U.S. and international corporate clients who seek to hire or transfer foreign employees as well as foreign individuals seeking employment in the United States as health care professionals, executives, managers, and scientists.

Elise has particular expertise in advising employers with regard to compliance with

the Immigration Reform and Control Act including I-9 Employment Eligibility verification and worksite enforcement issues. A member of the American Immigration Lawyers Association, Elise serves on the Executive Committee of its Philadelphia Chapter.

A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, (B.A.1987), Elise received her law degree from the Villanova University School of Law (J.D., magna cum laude, 1991).


Theodore J. Murphy, Esq.

Theodore J. Murphy (Ted) serves as counsel to Klasko, Rulon, Stock & Seltzer, LLP and has been involved with immigration for the past 14 years - over a decade with ICE and the former INS.

As one of the government's most experienced attorneys, Ted represented the Agency in all matters before the Immigration Courts and Board of Immigration Appeals, handling criminal, national security, fraud and employer sanction cases. Ted has served as a Special Assistant United States Attorney and as an Adjunct Professor of Law at Temple University Beasley School of Law.

In addition, he is a veteran of the United States Army's 82nd Airborne Division. Ted received his undergraduate degree at Georgetown University (B.A. 1983) and his Law Degree (J.D. 1994) and Masters of Law (International Law) (LL.M. 1997) from Temple University.


Immigration Challenges: Quotas, Delays, and Enforcement

Agenda

Introduction Legislative and Regulatory Update Trainees Labor Certification Update Upgrading to a Higher Preference Category


Immigration Challenges: Quotas, Delays, and Enforcement

Agenda

Advising the Eternal Adjustment Applicant Immigration Consequences of Criminal Activities Dealing with Government Adjudication Delays Worksite Enforcement Questions & Answers

(cont’d)

Legislative and Regulatory Update

Richard R. Rulon, Esq.


Prospects for Comprehensive Immigration Reform (CIR) in 2008

Very unlikely Piecemeal legislation possible on enforcement

and on essential and high-skilled workers


Enforcement Legislation

House

SAVE Act being pressed in HouseUse of E-Verify system by all employers within 4

years of enactmentDramatically expands SSA “no match letter”

programDirects increased resources to border and

interior enforcement



Senate

Bills have been introduced by Republicans to:Create mandatory minimum prison sentences

for FNs caught entering the US illegallyRequire all employers to use electronic

employment verification system and terminate workers whose work eligibility cannot be verified

(cont’d)



SenateWithhold Foreign Aid for countries that deny or

delay the acceptance of their nationals who have been ordered removed from the U.S. and to prohibit the issuance of visas for nationals of those countries

(cont’d)


Employment Relief Legislation

House

Rep. Smith (R-TX) introduced H.R. 5642 which would increase the numerical limitation with respect to H-1Bs for fiscal years 2008 and 2009

Rep. Giffords (D-AZ) introduced H.R. 5630 which would increase the numerical limitation on H-1Bs and includes new protections for U.S. workers



House Rep. Kennedy (D-RI) introduced H.R. 5634 which

would exempt from numerical limitations any alien who has received a Ph.D. from an institution of higher education within the 3-year period preceding such alien’s petition for special immigrant status

(cont’d)



Senate

No employment relief legislation introduced yet (other than the SKIL Bill which was re-introduced last year and is still pending)

(cont’d)



Prospects for passage

Not very likely unless impacted employers turn up the heat by writing, calling and meeting with their Members of Congress. Some possibility of H-1B and H-2B relief coupled with some version of SAVE Act making employment verification using E-Verify mandatory

(cont’d)


Prospects forCIR Legislation in 2009

Presidential Candidates

All three favor some form of CIR

Congress

If both Houses remain in control of Democrats, CIR legislation is possible if actively supported by new President


Significant Regulations

DHS proposes to repromulgate without change the “No Match” Regulation issued in August 2007 “No Match” letter can be used as evidence that

employer “knowingly” hired an unauthorized worker if data mismatch not resolved


Significant Regulations

New Interim OPT regulation issued 4/4/08: Students with degrees in science, technology,

engineering and mathematics may apply to extend OPT by additional 17 months if their employers are participating in E-Verify

Any student on OPT seeking a change of status to H-1B will receive automatic extension of their status until H-1B status begins on 10/1/08 or H-1B application is denied

(cont’d)


The BAD News for 2008

Increased employer sanctions Expanded deportability Continuing visa backlogs Little, if any, meaningful relief for high tech and

essential workers

Trainees



F-1 Optional Practical Training: What is it

All Students: 12 months OPT – “Optional” When and how to take it (Full or Part time, Pre- or Post Completion)

“STEM” Students: Additional 17 months May Be Full Time After Coursework Completed Requires Recommendation of School and USCIS-

issued Employment Authorization (EAD)


F-1 Optional Practical Training: New Requirements

All Students in OPT: Unemployment during 12 months of OPT may not

exceed 90 days in aggregate Must report changes in employment status and address

to school for entry into SEVIS Students in 17-month “STEM Extension”

Unemployment during 29 months of OPT may not exceed 120 days in aggregate

Employer must agree to notify school of termination Student must make “validation reports” to school every

6 months for entry into SEVIS


F-1 Optional Practical Training: “Cap Gap” Prevention

Covers All Students in OPT and valid F-1 status as of 4/1 whose petitions are selected in the “H-1B lottery” if a Change of Status was requested

Grants Automatic Employment Authorization during the “Cap Gap” (end of EAD to start of H-1B)

Does not require degree in STEM field or Employer Participating in E-Verify


F-1 Optional Practical Training: New “STEM Extension”

Student must be in first 12 months of OPT, may be approved for 17 months further OPT (for 29 months of OPT, or up to 35 months when eligible for “cap gap” protection)

Student must have earned a bachelor’s, master’s or doctoral degree in a designated Science, Technology, Engineering or Mathematics (“STEM”) field


F-1 Optional Practical Training: New “STEM Extension”

Must be based on specific job offer, in student’s specific field, with new recommendation from DSO

Must apply for new EAD, but grants automatic Employment Authorization if timely filed (end of EAD to start of new EAD)

Employer must be Participating in E-Verify

(cont’d)


B-1 Training Visa

Training not available abroad Training is to benefit foreign national’s career

abroad No productive employment Source of salary--compensation abroad Limited time/prepare alien for POE


J-1 Exchange Visitor Program sponsor/ skills list / two year return residence

requirement 6/19/07 Rule Revised Intern and Trainee reqs.

Intern: (1) current enrollment in post-secondary institution outside the US OR (2) Graduation w/i last 12 months from post secondary institution outside the US

Trainee: (1) a degree or prof. certificate from an academic institution outside of the US plus one year of non-US work experience related to training OR (2) at least five years of non-US work experience related to training

Maximum duration: Intern 12 months / Trainee 18 months (limitation agriculture & hospitality & tourism 12 months for either category)


H-3 Trainees

Formal training program required Productive employment incidental to training Training will qualify alien for position abroad Training up to 2 years

Labor Certification Update

William A. Stock, Esq.AILA DOL Liaison Committee


Backlog Centers Are No More

Roughly 364,000 Cases decided between March 25, 2005 and October 31, 2007

Only about 13 cases left Philadelphia and Dallas Centers Have Been Shut

Down (were 75% of DOL Labor Cert Budget) Remaining cases (and any remanded appeals) will

be handled at the Chicago National Processing Center and the National Office


Unresolved Backlog Center Cases

Lost Certifications: Must File I-140 without it, though the deadline is passed

Litigation Would Be Necessary for Any Remaining “Missing” Cases

Amendments and White Out Not Stamped by DOL Are Questioned by USCIS


PERM Processing: Progress? DOL will “Specialize” the Two National Processing

Centers Atlanta: All PERM Labor Certifications Chicago: All H-2B Labor Certifications

Resources Used to Run Backlog Centers Now Allocated to PERM and H-2B – Expect Audits and Supervised Recruitment

Audit Rate: DOL will not reveal, but significantly increased As of 12/31/07, 44% of pending cases were in “Audit

Review” status


PERM Processing: Current Issues

When Is “Kellogg” Language Required? Are Employer’s Names on the Posted Notice of

Job Opportunity? Are Advertisements Specific Enough? When Is “Business Necessity” Required?


Business Necessity

Explains why the Requirements are Reasonable and Necessary to Do the Job

A Detailed Employer’s Statement is the Foundation Employer’s Preexisting Documents are Convincing

Job Descriptions Resumes of Colleagues/Prior Employees in the Position

Outside Documentation May Be Helpful Expert Opinions Statements from Customers or Competitors DOL Publications (Occupational Outlook Handbook, etc)


New Rules in 2007

Labor Certifications May Not Be Bought or Sold Attorney’s Fees and Other Labor Certification Costs

to be Borne by the Employer “Substitution of Beneficiary” Is No More Labor Certifications Expire 180 Days After

Submission Unless Filed With an I-140 USCIS: One filing within 180 days satisfies requirement Subsequent petitions can be based on expired LC


PERM Processing: The Future

Will We See A Fee for Labor Certifications? Building Capacity for H-2Bs, More Audits Release of Data; Possibility of Longitudinal Studies Reengineered Form in Effect January 1, 2009 LCA Adjudication Process Will Be “Employer

Account” Based as of January 1, 2009 – and may take 7 days for an LCA


Upgrading to a Higher Preference Category

Suzanne B. Seltzer, Esq.AILA Vermont Service Center Liaison Committee


What are Preference Categories?

Order in which visas are made available

1st Preference (Eb-1)Multi-National Executives/MgrsAliens of Extraordinary AbilityOutstanding Researcher




2nd Preference (Eb-2)Advanced Degree ProfessionalsBachelors + 5 years ExperienceNational Interest WaiversAliens of Exceptional Ability

(cont’d)




3rd Preference (Eb-3)Skilled Workers (requiring 2yrs +

experience)Professionals (bachelor’s degree)“Other” workers (only 5,000 per year)

(cont’d)


Why Upgrade?

QuotasPer CountryPer Preference Category

Issued in Order in which Petition Filed (Priority Date)


April 2008 Visa Bulletin – Empl. Based

Where Are We Now

WorldwideCHINA-mainland born

INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 01DEC03 01DEC03 C C

3rd 01JUL05 08FEB03 01OCT01 01OCT01 01JUL05

OtherWorkers

01MAR02 01MAR02 01MAR02 01MAR02 01MAR02


How to Upgrade?

Eb-3 to Eb-2

PERM Context Bachelors + 5 years Master’s Degree or Higher Exceptional Ability


How to Upgrade?

Eb-3 to Eb-2

National Interest Waiver “Waives” the Requirement of Job Offer Must Either Have

Advanced Degree Exceptional Ability

(cont’d)


How to Upgrade?

Eb-3 to Eb-2National Interest Waiver

NYSDOT CriteriaSubstantial Intrinsic MeritNational in ScopeSubstantially Better Than Others

(cont’d)


How to Upgrade?

Eb-2 to Eb-1

Extraordinary Self-Petition Regulatory Criteria Support Letters

(cont’d)


How to Upgrade?

Eb-2 to Eb-1Outstanding Researcher

Employer SponsoredUniversity/Institution of Higher EdPrivate Employer

At least 3 full time researchers “Documented Accomplishments”

Tenure Track or “Permanent” Offer

(cont’d)


How to Upgrade?

Eb-2 to Eb-1

Outstanding Researcher Three years experience Recognized Internationally Regulatory Criteria Support Letters

(cont’d)


How to Upgrade?

Eb-2 to Eb-1

Multinational Executive/Mgr Employer Sponsored

Qualifying Rel. between US and foreign entityAt least One Year “Doing Business”

One Year in Last Three Mgr or Exec One Year Abroad as Mgr or Exec

(cont’d)


What if I Can’t Upgrade

Valid Non-Immigrant StatusExtending H beyond 6 years

Buy back time Start LPR process one year in advance

Exploring other NIV Eternal Adjustment Applicant

Advising the Eternal Eternal Adjustment ApplicantAdjustment Applicant

H. Ronald Klasko, Esq.


Maintenance of Nonimmigrant Status after Filing Adjustment

H-1B, H-4, L-1, L-2 O and E F-1, H-3 and other temporary statuses


Travel

Travel by nonimmigrant other than H-1B, H-4, L-1, L-2

Travel by H-1B, H-4, L-1, L-2 Travel using advance parole

Travel after advance parole filed Travel after advance parole approved Timing for advance parole extensions Issues with multiple advance parole

documents


Extensions of H-1B or L-1 Status

Advice regarding extension of H or L versus obtaining EAD

Length of extension Extension of H or L status by parolee


Travel with parole and work without EAD Impact of working without authorization

after filing adjustment Timing of extension of EAD

Employment during Adjustment Pendency


Issues of H-4 working with EAD Issues of L-2 working with EAD Issues of H-4/L-2 where principal entered

on parole Following to join after quota retrogression Status of H-4/L-2 where principal works

without authorization

Spouses


Protecting age if child outside the US Child over 21 when adjustment filed for

principal Impact of quota retrogression on

concurrent adjustment for child

Children


Questions ?

Immigration Consequencesof Criminal Activities

Theodore J. Murphy, Esq.


Introduction

When Do We Care About Crimes?

What Crimes Do We Care About?

Arrests, Convictions, Pleas, Diversions

Avoiding Immigration Consequences


Immigration Consequences – When Criminal Activity Matters

ADMISSIBILITY: Eligibility to get a visa and enter the United States and Adjustment of status

DEPORTABILITY: Causing loss of status and subjecting one to possible deportation

NATURALIZATION: Certain Crimes prevent a showing of “Good Moral Character”


What Criminal Activity has Immigration Consequences?

Commission of the crime Arrests Diversions Convictions


ARRESTS GENERALLY A mere arrest can have a negative impact

Any arrest must always be admitted in all immigration contexts

Arrests will appear in computerized records if person was fingerprinted

No distinction between misdemeanor or felony


What is a “conviction”?

A “conviction” means either: a judge or jury found the individual guilty; OR a pre-trial diversion program in which the alien

entered a plea of guilty/no contest as part of the diversion program.

Conviction still exists even if just fine or probation, no jail

Misdemeanor or felony distinction is unimportant


Severity of Crimes

Less Problematic – traffic citations, minors with alcohol, DUI

More Problematic – minor theft, simple assault, marijuana

Most Problematic - selling drugs, guns, slavery, violent crimes, racketeering, perjury, fraud, tax evasion, theft, alien smuggling, etc.


Domestic Offenses

Most domestic offenses, including spousal abuse, child abuse or neglect, stalking, violation of protective orders, can result in deportation

Domestic partners, fiancé/es, former spouses included in spousal abuse

This includes convictions for misdemeanors and violating civil protection orders!


Preventing Immigration Consequences

Early Involvement of Immigration Counsel with Criminal Counsel

Formal or Informal Diversion Programs

Plea or Sentencing Agreements to Avoid Immigration Consequences


So What Happens After Convictions?

Loss of status Ineligibility for future immigration benefits Visa delays because of fingerprint checks Detention Deportation


After a Conviction, Can Anything Be Done? Generally, convictions cannot be “expunged” or erased

for immigration purposes

Some waivers are available in limited circumstances

Purpose for post conviction action: deportability vs. mere hassle

Certified copies of court papers

H. Ronald Klasko, Esq.Theodore J. Murphy, Esq.

Dealing with Government

Adjudication Delays


Options for Dealing with Delayed Cases

Do Nothing – wait and hope Make inquiries Seek Congressional assistance Litigation


Causes of Delay

Processing backlogs RFEs: delay in responding Inadmissibility issues Investigations Motions to Reopen or Reconsider Government errors Priority date retrogression


Causes of Delay

ClearancesTechnology Alert ListCriminal clearancesSecurity clearancesName check clearances

(cont’d)


Administrative Mechanisms for Addressing Delays

USCIS Premium Processing Service Center inquiries Interim EAD

DOL inquiries DOS inquiries:

Consulates Visa Office

AILA inquiry mechanisms


Federal Court Litigation:Pre-litigation Issues and Concerns

Expense Time involvement Retaliation? When to file? Actions to take before filing Where to file? How long will it take? What are the chances of success?


Federal Court Litigation:Legal Framework

What is the law?MandamusAdministrative Procedure Act

ComplaintWho are the parties?What relief is requested?


Types of Applications

I-129/I-140Employer as plaintiff

I-485Memo re: name check delays (2-4-08)

180 days from request to FBI Adjudicate if approvable and quota current


Types of Applications N-400

No 180-day limit on name check delays New FBI targeted timeframes

If interviewed Can choose to have federal court decide 120

days after interview USCIS policy to withhold interview until name

checks clear If not interviewed

Option to file mandamus in federal court

(cont’d)


Federal Court Litigation:Responses of the Government

Possibility of “expedite”OfficiallyUnofficially

Motion to Dismiss


Federal Court Litigation:Role of the Judge

No precedent: judge is critical Active judges/passive judges Range of orders


Worksite Enforcement

discussion leader


Overview - Brave New World for Employers

New government enforcement priorities and techniques;

Penalties for non-compliance, including criminal liability;

Impact of State and local laws; Social security no-match letters; Choosing whether to participate in voluntary

government programs (E-Verify, IMAGE).


ICE Enforcement Strategy

Recent ICE enforcement initiatives—audit v. raid Increased civil fines coupled with criminal

penalties ICE has the authority to use wiretaps ICE has the authority to establish and operate

undercover investigations ICE utilizes confidential informants ICE coordinates with IRS, DOL and other agencies


Impact of State and Local Laws As of December 31, 2007, at least 1562 pieces of

legislation related to immigrants had been introduced among the 50 state legislatures – of the 240 that became law – 29 effect employment in approximately 20 states.

Companies that knowingly hire illegal workers may face: Possible loss of business licenses – Arizona, Tennessee, West

Virginia Possible loss of government grants and contracts – Arkansas,

Colorado, Delaware, Georgia, Idaho, Iowa, Massachusetts, Minnesota, Oklahoma, Pennsylvania, Tennessee, Texas

Some states require E-Verify while Illinois prohibits it.


“No-Match” Regulations

DHS/ICE issued regulations on August 15, 2007 to be effective September 14, 2007—constructive knowledge receipt of Social Security no match letter or Written notice from DHS

Prior to effective date, the U.S.D.C. for the Northern District of California enjoined the implementation

On March 21, 2008 - DHS Supplemental Proposed Rule

On March 24, 2008 the Office of Special Counsel issued Antidiscrimination Guidance


Social Security “No Match” Regulation

“Reasonable steps” to rebut constructive knowledge presumption (“safe harbor”) Within 30 days: employer check/correct records and

inform SSA/DHS Within 90 days: if employer records correct, request

employee confirmation If employee corrects record, employer correct and

inform SSA If employee states employer records correct, employee

must resolve discrepancy with SSA within 90 days


Social Security “No Match” Regulation

If unresolved after 90 days, new I-9 must be completed by the 93rd day. Employer cannot accept the following:

Any document referenced in written notice Any document with disputed social security or

alien number Any receipt for replacement of such document

Employee must present a document with a photograph

If not, terminate

(cont’d)


Choosing Whether to Participate in Voluntary Government Programs

E-VerifyChecks social security number against national

databases-SSA & DHSNew photo screening toolVoluntary program (at least on federal level at

this time)Requires Employer to agree to MOU with DHS

and SSA w/significant obligations


E-Verify Memorandum Of Understanding

Main Employer Responsibilities Post notices Agree to visits by ICE and/or designees Attach results to Form I-9 and retain for same time as form Rebuttable presumption of compliance if confirmation is

obtained Notify DHS if continues to employ following non-confirmation

(civil penalties $500-$1,000 for failure to notify) If continued employment after Final Non-Confirmation a

rebuttable presumption of violation of INA § 274A(a)(1)(A) is created


General Guidelines for E-Verify

Not a substitute for I-9 compliance Does not provide protection against worksite

enforcement Cannot be used to pre-screen Can only be used to verify eligibility of newly hired

employees Queries must be conducted within 3 days after hire You can leave the E-Verify program only after 30 days

notice


Guidelines for E-Verify What you need:

Information from Section 1 and 2 from the Form I-9 Employees name Date of Birth Social Security Number Citizenship Status employee attest to A# or I-94 # if applicable Expiration dates for identification and eligibility

documents Identification document provided from List “B” must

contain a photograph

(cont’d)


Results

Confirmation – GREEN LIGHTRecord the case verification number of Form

I-9 or attach printout of result screen.This ends the process - Obligation to re-verify

remains for time limited authorizations. Final Non-Confirmation – RED LIGHT

Record the case verification number of Form I-9 or attach printout of result screen


Results

Tentative Non-Confirmation – YELLOW LIGHT System cannot perform immediate match NOT grounds for termination Follow up steps:

1. Double check input date to ensure no errors (if errors are found run SSA query again)

2. Record case verification number

3. Inform employee of tentative non-confirmation

(cont’d)


Results

4. Inform employee he/she has the right to contest non-confirmation with SSA or DHS

5. If employee does not contest – YOU MUST TERMINATE EMPLOYMENT

6. If employee contests –must provide with a referral letter to SSA or refer to contact DHS. Employee has 8 Federal Working Days to resolve discrepancy with SSA/DHS (unless SSA/DHS extends)

7. On the date that is 10 Federal Working Days after the date of the referral you must query the system again.

(cont’d)


Advantages of Using E-Verify

Rebuttable presumption of compliance if confirmation is obtained—Swift

Allows employer to query system re validity of documentation

For employers with higher percentage of undocumented workers or greater use of fraudulent documents, saves time/training by identifying unauthorized workers prior to no-match


Disadvantages of Using E-Verify

Significant problems with underlying databases Potential waiver of 4th Amendment protections Limited to new hires No safe harbor from worksite enforcement SSA may not extend 8-day resolution period No formal appeals process Continued employment after final non-

confirmation results in rebuttable presumption of violation


Disadvantages of Using E-Verify

Penalty of $500 to $1000 for each failure to notify of continued employment after final non-confirmation

Insufficient protection from discrimination claims Value/impact of new photo tool questionable 30 day notification period to withdraw Issue as to whether system can handle increased

volume Add’l HR and company time for process in addition to

I-9

(cont’d)


IMAGE-Choosing Whether to participate in Voluntary Government Program

ICE Mutual Agreement between Government and Employers (“IMAGE”) (www.ice.gov/partner/opaimage)

I-9 audit by ICE Verify social security numbers of existing workforce ICE training and education Commit to ICE “best practices” Establish “tip line” to ICE Does not ensure against raid, investigation, fine or

criminal action


Speaker Contact Information

H. Ronald Klasko, Esq. Tele: 215.825.8608 Fax: 215.825.8699 E-mail: [email protected]

Richard R. Rulon, Esq. Tele: 215.825.8612 Fax: 215.825.8699 E-mail: [email protected]

William A. Stock, Esq. Tele: 215.825.8607 Fax: 215.825.8699 E-mail: [email protected]

Suzanne B. Seltzer, Esq. Tele: 212.796.8846 Fax: 212.297.1799 E-mail: [email protected]

cont’d…


Speaker Contact Information

Elise A. Fialkowski, Esq. Tele: 215.825.8647 Fax: 215.825.8699 E-mail: [email protected]

Theodore J. Murphy, Esq. Tele: 215.825.8646 Fax: 215.825.8699 E-mail: [email protected]

Visit us online at www.klaskolaw.com