JAMES D. LEVINE, ESQ.

D IANE L . SOROKO, IMMIGRATION SPECIALIST

MCKENNA LONG & ALDRIDGE LLP

OCTOBER 6 , 2011

SHRM I-9 Compliance Issues

Classifications

Nonimmigrant. A foreign national entering the

United States intending to remain temporarily.

Lawful Permanent Resident. A foreign national

entering the United States intending to remain

permanently. Also known as “green card.”

U.S. Citizen. An individual who by birth or

naturalization is entitled to the enjoyment of full civil

rights in the United States.

2

Common Nonimmigrant Classifications

B-1/B-2 – Visitors

H-1B – Specialty Occupations (require bachelor’s

degrees in specialty)

L-1A/L-1B - Intra company Transferees

E-1/E-2 - Treaty Trader/Investor

TN - Canadian or Mexican Professionals

E-3 - Australian Professionals

3

No Discrimination 4

It is an unfair immigration-related employment

practice to: discriminate against any individual

with respect to hiring or recruitment for

employment or to discharging person from

employment based on the person’s “national

origin” or against certain “protected individuals”

(includes asylees, refugees, etc.)

Employment of Nonimmigrants – I-9 5

I-9 Requirements 6

A request for more or different documents than

are required or refusing to honor documents

provided that “on their face reasonably appear

to be genuine” shall be treated as an unfair

immigration-related employment practice if

request for the purpose or with the intent to

discriminate.

I-9 Requirements (Continued) 7

If USCIS discovers that an employee is not actually authorized to work, you can claim “good faith” defense, if you have done the following:

a. Ensured that employees fully and properly completed Section 1 of the I-9 at the time employment began.

b. Reviewed the required documents which should have reasonably appeared to have been genuine and to have related to the person presenting them.

I-9 Requirements (Continued) 8

b. Fully and properly completed Section 2 of the I-9,

and signed and dated the employer certification.

c. Retained the I-9 for the required period of time;

and

d. Made the I-9 available upon request to an USCIS,

DOL, or ICE officer

Document Retention 9

Employers must retain the I-9 for 3 years’ after

the date employment begins or 1 year after the

date the person’s employment is terminated,

whichever is later.

Independent Contractors 10

Employers are not required to complete an I-9

form independent contractors or their

employees

However, you must not knowingly use contract

labor or circumvent the law against hiring

unauthorized aliens.

Social Security Cards 11

Employment Authorization for Nonimmigrants

12

I-94 Cards 13

Visa is not employment authorization 14

Permanent Residency 15

Lawful Permanent Resident. A foreign national

who holds a “green card”

E-Verify 16

Internet-Based “Voluntary” System to provide

confirmation or tentative non-confirmation of

employees’ employment eligibility within three

(3) Federal Government workdays of the initial

inquiry

Public Employers

E-verify is already required in Georgia for “public

employers” (departments, agencies, etc. of the

state and political subdivisions) and

contractors/subcontractors/sub‐subcontractors

with public employers for “physical performance of

services”

Affidavits required

17

Public Employers

SB 87 requires public employers to certify

compliance annually, providing a list of contractors

Violators will be listed on the DOL website;

second‐time violators will be barred from entering

into public contracts for 12 months

18

Private Employers

Private employers in Georgia must participate in

E‐Verify:

01/01/2012 – private employers with 500 or more

employees

07/01/2012 – private employers with 100 or more

employees

07/01/2013 – private employers with 11‐99 employees

State takes position that employee count includes

total workforce, not just Georgia employees

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Private Employers

Cities and counties will be prohibited from issuing

business licenses, occupational tax certificates or

other authorizations to do business without proof

of employer participation in E‐Verify

Department of Law must publish form of affidavit to

be used to certify compliance by 01/01/2012

Affidavits will be required for renewals of licenses

too

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Electronic Forms I-9

April 2005 law took effect authorizing employers to

retain Employment Eligibility Forms (Forms I-9) in

electronic format

Immigration and Customs Enforcement (ICE)

promulgated rules setting standards for using

electronic I-9s in June 2006

Employers can convert to an electronic format by

scanning and indexing current Forms I-9 and storing

them using electronic I-9 software

21

ICE Standards

Forms must be legible on the computer screen and

when printed

Data order must be the same as paper versions

Back up systems must be in place

Software must have an indexing system

Must have the ability to reproduce hard copies

Unrestricted government access to software

Software must have user/action identifying system

22

Benefits of Electronic I-9s

Software has restrictions on completing the form

unless data is properly entered

Pre-filled employer sections save time

Monitoring is easier for multiple site employers

Reverification is automated

Can be integrated with E-verify

Reduces risk of identity theft

Easier to respond to ICE audits

Automation of records purging

Systems are searchable

23

Limitations

There is no 100% secure electronic system

Cost

Internet dependent

Vendor goes out of business

24

Employer Obligations

Implement records security program to ensure only

authorized personnel have access to records

Back-up records

Train employees and implement controls to minimize

the risk of records alteration or deletion

Ensure user/action identifying system is in place

Regular inspections of electronic data to ensure

integrity

25

Audit Requirements

Employer must provide description of electronic

generation and storage system

Employer must retrieve and reproduce forms and

audit trails requested by inspecting officer

Inspector must be provided with hardware, software,

personnel, and documentation to locate, retrieve,

read, and reproduce Forms I-9 and related data

Inspector can request electronic summary of all

immigration fields on a stored Form I-9

26

New Developments 27

No movement on federal immigration reform

Increased enforcement and inspections, including

I-9 audits

More automation – consistency critical

H-1Bs – focus on who is the employer

L-1Bs – heightened scrutiny

New Developments (cont’d) 28

PERM applications – timing; cases

Obtaining visas abroad – delays

Implications of convictions for U.S. citizens

traveling abroad

Contact Information 29

James D. Levine, Esq.

McKenna Long & Aldridge LLP

303 Peachtree St., NE

Suite 5300

Atlanta, Georgia 30308

(404) 527-4090

jlevine@mckennalong.com

Diane L. Soroko, Immigration Specialist

McKenna Long & Aldridge LLP

303 Peachtree St., NE

Suite 5300

Atlanta, Georgia 30308

(404) 527-4969

dsoroko@mckennalong.com